ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 September 2023 DOCKET NUMBER: AR20220011693 APPLICANT REQUESTS: reconsideration of his previous requests to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Discharge Order FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers: * AR20190004336, on 1 July 2021 * AR2003087356 on 9 October 2003 2. The applicant states his other-than-honorable discharge was improper because it was inequitable. On May 4, 1981, he requested to discharge from the Army because of the racial harassment and unjust treatment from his immediate commanding officers. He is requesting the Board to finally provide justice to him for failing to provide an office that provided diversity and inclusion for soldiers experiencing a hostile environment. Fort Sill provided an environment so hostile that he has experienced a lifetime of trauma, PTSD (post-traumatic stress disorder). After leaving Fort Sill, he got hooked on drugs trying to forget his experiences, and using drugs led him to a 30 year-prison sentence from which he recently got released for good behavior, and most importantly he is not allowed to receive the VA benefits he earned serving in a war and now he is homeless. It's time for the military to correct this error and approve an upgrade to his discharge. 3. He also provides a continuation sheet to his application, in which he states: a. He experienced racial harassment and unjust treatment from his immediate commanding officers. His fellow soldiers in confidence informed him that their officers asked them to torment him and "They would benefit from getting the country nig** to resign." Upon arrival of this duty station the in-charge officers addressed him with racial slurs, which are now legally considered fighting words as well as improper treatment. As a 22-year-old away from home this unfair racially motivated treatment cause him lifelong trauma, drug addiction and permanent mental issues. If there would have been a diversity office when he was at Fort Sill, his life would not have been ruined by inequitable treatment that led to his improper resignation from the Army. Today, there is a push for diversity and equality in the US Government and diversity offices across all Army bases but when he was at Fort Sill if there would have been a diversity office, he would have received the proper protection as a Young African American Man and a fair consultation that would have explained to him, his options on resigning and he knows if he was fairly advised he would have never agreed to an Other-than- Honorable discharge. He knows he would have stayed in the Army if someone was there shielding him from the racial trauma he was receiving. He was given the paperwork to sign in a "Hostile Environment” when he was only 22 and degraded with racial slurs by his commanding officers. With the insinuation that he had no choice but to agree to the offer to resign and accept the injustice of Other-than-Honorable discharge. b. Accepting this injustice has resulted in him not receiving his full 100% veterans benefits for his son and himself as he has been diagnosed with mental illness, PTSD and depression by the VA. He has been unable receive full benefits and now he is another homeless Vet. He will be discussing a list of the problems that he experienced while at Fort Sill, to include prejudice and racial discrimination. He was given a summary court martial and acquitted. He was supposed to be transferred after being acquitted; however, remained with the same company. 2He was under stress and made an appointment with a psychologist. All he wanted to do was to make something of himself, besides being a drug dealer. He was mentally and physically abused. He ended up being a drunk and a drug abuser trying to forget the abuse he received while at Fort Still. Because of the drug addiction, he ended up in prison just because he wanted to be all he could be as a black American who wanted to serve his country. As a result of the improper and inequitable treatment that he experienced while at Fort Sill. There is no doubt in his mind he would not have experienced all the injustices, he did at Fort Sill today since the Office of diversity and the push from the Government for equality in the military would have been in place during his tour. There would have been more support for him to fight for equal rights and he could have reported what the soldiers shared in confidence to a diversity officer. As a direct result of not having a diversity officer/office during his time as a solider, his military time was cut short and he received an unjust discharge as well as premiant mental issues, drug addiction and PTSD. c. All the time he spent in the Army and Army Reserve he got good reports until he got to Fort Sill. He volunteered to be part of the Army because he wanted to fight for his country, and he loved being part of the Army, he wanted to be all he could be and retire. He was doing great until 1 May 1981, when he got to Fort Sill and the racist Sergeants came in his life. For some reason they didn't like people from MS especially African Americans they consistently reminded him, as well as personally telling him they were going to make his military career a living "HELL" until he resigned which is exactly what they did. The first sergeant would excessively tell him "Back wood nig** you have no place in the Army and you should have never been able to enlist." He was young and scared and he would pray all the time to be delivered from this base. He felt himself breaking and he requested leave and he left for a break and when he came back that is when it got worse. He was setup for marijuana then arrested and A summary Court Marshall was issued. He won that and was told he would be sent to a new company because it was clear he was setup. He was told he would return to a new company after he won his court-martial not sure why, but they sent him back to the same company, another injustice. Upon returning to the same racial unit, he was assaulted by a group of guys, and he was the only one charged. In April 1981, charges were prepared against him for assault. The Staff Judge Advocate, who was close friends with his commander, upon receipt of those charges, recommended to the commander, that he be tried by a special court-martial empowered to adjudge a bad conduct discharge. This was his breaking point because one of the soldiers involved in the assault told him in confidence to just resign because they were ordered to start the assault. This is what lead him to request to resign before the court-martial. He knows if there would have been a diversity office the soldiers and he could have reported the incidents from the chiefs. After being mentally and physically abused he was scared and given the option to end it all and go home if he agreed to an Other-than-Honorable Discharge. d. He was encouraged to sign the paperwork in a "Hostile Environment" which is an injustice to him not only as a solider but as a human. This discharge has restricted his VA benefits as he served in war and now, he can't receive the benefits that he has earned as a solider fighting during war times. He can't sleep due to the trauma from the War as well as the inequitable treatment from Fort Sill. The inequitable military discharge, PTSD, Mental illness, and depression that he is currently experiencing all begun from the unjust treatment and the military's error in not having the proper diversity options during his time at Fort Sill. As a result of the error the military made in protecting his rights as an African American Male Soldier, he cannot receive 100% veteran benefits that he earned fighting a war for this county that has caused him PTSD. e. The 3-year time limit for the Boards of Correction of Military Records should be waived in this case. According to the 2014 Hagel Memo ("Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD") and the 2016 Carson Memo ("Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD or TBI"), the Board must ignore this time limit in cases involving PTSD. 4. Review of the applicant’s service records shows: a. He enlisted in the U.S. Army Reserve (USAR) on 5 April 1978. His DA Form 2-1 (Personnel Qualification Record) shows he entered active duty for training (ADT) in July 1978 and completed ADT for award of military occupational specialty 36K, Tactical Wire Operations Specialist. He was released from ADT in October 1978. b. Orders 7-24, issued by Headquarters, First United States Army, Fort George Meade, MD on, 10 January 1980 ordered the applicant to involuntary active duty on 3 March 1980 for a period of 20 months and 22 days. c. On 12 March 1980, he was initially assigned to the 14th Aviation, Fort Sill, OK, and on 1 August 1980, he was transferred to the 200th Aviation Battalion. d. On 21 October 1980, the applicant accepted nonjudicial punishment (NJP) for absenting himself from his place of duty without authority. His punishment included 15 days of correctional custody. e. On 17 December 1980, the applicant's commanding officer initiated a Bar to Reenlistment Certificate against the applicant citing the applicant’s negative attitude, failure to respond to good order and discipline within the unit, and failure to respond to counseling on several occasions. On 23 December 1980, a bar to reenlistment was approved. f. On 16 March 1981, the applicant again received NJP for on or about 4 March 1981 without authority fail to go at the time prescribed to his appointed place of duty (physical training formation). His punishment included reduction to private/E-2. g. On 1 April 1981, court martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of on or about 27 March 1981, committing an assault upon another service member, by striking him in the face with a closed fist and did thereby intentionally inflict grievous bodily harm upon him, to wit: a fractured nose. h. On 3 and 7 April 1981, his chain of command recommended trial by Special Court Martial empowered to adjudge a bad conduct discharge, and on 22 April 1981, based on the recommendation of the staff judge advocate, the convening authority directed trial by a special court-martial empowered to adjudge a bad conduct discharge. i. On 7 May 1981, the applicant consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge. Following this consult, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged the following: * he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many, or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under Federal and State law * he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge j. On 4 and 7 May 1981, his chain of command recommended approval of the applicant’s request for discharge for the good of the service. k. On 12 May 1981, the separation authority approved the applicant's request for voluntary discharge in lieu of trial by court-martial. He directed the applicant be issued an Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade. Accordingly, the applicant was discharged on 15 May 1981. l. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10 (in lieu of trial by a court-martial) in the rank of private/E-1, with an under other than honorable conditions characterization of service. He completed 1 year, 2 months, and 13 days of active service. m. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. n. On 9 October 2003, in ABCMR Docket Number AR2003087356, the Board considered his application but determined that after reviewing the application and all supporting documents, that relief was not warranted. The Board denied his request. o. On 1 July 2021, the Board reconsidered his request for an upgrade of his discharge. (1) Prior to adjudicating his case, the Board requested a medical review of his case since he contended that the misconduct leading to his discharge was due to mental issues he experienced and discrimination he developed while in the Army, and that he should also be awarded a medical retirement determination. The medical provider determined that the applicant’s military records do not support the presence of any boardable behavioral health problems at the time of discharge; the applicant’s military records do not indicate that the applicant failed to meet medical retention standards in accordance with AR 40-501, Standards of Medical Fitness, for behavioral health and medical reasons that impacted occupational functioning significantly, and the applicant’s behavioral health condition does not warrant separation through medical channels. Based on the information in the applicant’s medical record, the medical provider/psychologist opined that there are no mitigating Behavioral Health conditions. Problems arising from common conditions like PTSD, anxiety or depressive mood often contribute to self-isolation, anger outbursts, aggressive behavior, intrusive memories, nightmares, interpersonal difficulties, poor sleep, low self-esteem, suicidal ideation, low motivation, nervousness, and self-medication with drugs/alcohol. An assault causing serious injury to another soldier, even if provoked, is not part of the natural history or sequelae of most behavioral health conditions, and, as such, is not mitigated under Liberal Consideration. A referral of the applicant’s record to the Army Physical Disability Agency for consideration of military medical retirement is not indicated at this time. (2) After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. 5. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. 6. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the VA's Joint Legacy Viewer (JLV). There were no records in the Interactive Personnel Electronic Records Management System (iPERMS) or in the Health Artifacts Image Management Solutions (HAIMS), likely due to the age of the case. The applicant desires an upgrade in discharge from Under Other than Honorable Conditions. He contends that his discharge was inequitable because he requested to be discharged as a result of experiencing racial harassment and unjust treatment from immediate commanding officers. He also indicated that PTSD and Sexual Assault/Harassment were related to his claim. He further stated that as a result of these experiences, he used drugs which led to a 30 year prison sentence. The applicant’s request is for reconsideration of the previous denials. b. The ABCMR ROP summarized the applicant’s available record. Of note, the applicant enlisted in the U.S. Army Reserve (USAR) on 05Apr1978. He was not exposed to combat. He was discharged on 14May1991 under provisions of AR 635- 200 chapter 10 in lieu of trial by court-martial. His charge included one specification: He physically assaulted a fellow soldier by hitting him in the face, fracturing his nose. c. The applicant declined having a discharge physical exam. A behavioral health evaluation report was not found. Review of the applicant’s JLV record showed the applicant’s providers did not endorse a PTSD diagnosis—they deemed that DSM-5 criteria were not met. There was also no MST or TBI diagnosis. The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance were considered; however, evidence does not reasonably support that there was a boardable behavioral health diagnosis at the time of his discharge. However, under the guidance of Liberal Consideration, the applicant’s self-assertion of PTSD is sufficient to merit consideration of upgrade by the Board. That notwithstanding, the serious physical assault on a fellow soldier is not part of the natural history of PTSD and therefore generally would not be mitigated under the guidelines. Therefore, a discharge upgrade was not able to be justified under Liberal Consideration guidelines. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. The record did not show a boardable BH condition that may excuse or mitigate the assault offense. (2) Did the condition exist, or did the experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's mental health claim and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a behavioral health condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AR2003087356 on 9 October 2003 and AR20190004336 on 1 July 2021. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 3. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//