IN THE CASE OF: 

		BOARD DATE: 18 August 2023

		DOCKET NUMBER: AR20230000265


APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his 
characterization of service from under other than honorable conditions to under 
honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	Two DD Form 149 (Application for Correction of Military Record), 15 September 
2022 and 13 October 2017
*	Two DD Form 293 (Application for the Review of Discharge from the Armed 
Forces of the United States), 15 September 2022 and 13 October 2017
*	Letter (Paralyzed Veterans of America), 15 September 2022
*	DD Form 214 (Report of Separation from Active Duty), 25 January 1978
*	Letter, (Kansas Division of Employment – Benefit Department), 10 May 1978
*	VA Administration Decision, 7 June 1978
*	Letter from VA, 15 June 1978
*	Two VA Form 21-4138 (Statement in Support of Claim), 12 July 2021 to 12 April 
2022
*	Department of Veteran Affairs (VA) Rating Decision, 26 April 2022

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 Number AR20040000137 on 3 February 2005.

2.  The applicant provides new evidence which was not previously considered by the 
Board. The applicant states he was harassed because of his race and size. He is a tall 
black male and was constantly degraded. Other service members picked fights with 
him, and he had to defend himself. There were other times he just took the beating 
because a superior was beating him. His shoes would be shined, and he would come 
back to put them on, and they had dirt on them. His experience in the military was not 
what he had planned. He was going to serve the country he loved and make a life for 
himself but instead he was harassed, beaten, humiliated, and separated with a 
characterization of service that ruined his life. He has never been able to find a decent 
job and he has been denied all veteran benefits. His time in service has caused great 
mental illness and distress. The testimony is one sided and biased. He was forced to 
sign for his separation and had no option afforded to him for legal help. Further, the 
applicant checked a box on his application acknowledging his request his related to 
“physical/mental” issues. 

3.  The applicant enlisted in the regular Army on 9 January 1976.

4.  The applicant accepted non-judicial punishment (NJP) under the provisions of Article 
15, Uniform Code of Military Justice (UCMJ) on the following occasions:

	a.  On 30 July 1976, he accepted field grade NJP for violating a lawful general 
regulation; having one M16A1 automatic rifle in his wall locker, on or about 29 July 
1976. His punishment consisted of reduction to the rank/grade private (PV1)/ E-1 
(suspended until 3 February 1977) and 45 days extra duty.

	b.  On 22 October 1976, he accepted company grade NJP for willfully disobeying a 
lawful order from his superior commissioned officer, on or about 16 October 1976. His 
punishment consisted of reduction to the rank/grade of PV1/E-1 (suspended until 27 
December 1976), forfeiture of $75.00 pay, 14 days extra duty, and 14 days restriction.

5.  His record contains a DA Form 3975 (Military Police Report), dated 15 March 1977, 
shows he was arrested for wrongful use and possession of a controlled substance 
(marijuana), on 17 February 1977.

6.  On 12 May 1977, the applicant accepted field grade NJP for being disrespectful in 
language and deportment toward his superior non-commissioned officer (NCO) by 
saying “knock your mother-fu**ing ass out too” or words to that effect and walked away 
from him, on or about 5 May 1977, and for failing to go at the time prescribed to his 
appointed place of duty on or about 11 May 1977. His punishment consisted of 
reduction to PV2/E-2, forfeiture of $150.00 pay and 10 days confinement.

7.  On 11 July 1977, the applicant underwent a medical examination for the purpose of 
separation. The doctor did not note any medical issues and found the applicant qualified 
for separation. He also underwent a mental status evaluation for the purpose of 
separation. The doctor noted the applicant had no significant mental illness and had the 
mental capacity to understand and participate in board proceedings.

8.  On 14 July 1977, the applicant's immediate commander notified him that he was 
initiating action to discharge him under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations - Enlisted Personnel), chapter 13, for misconduct because of 
frequent acts of discreditable nature with civil or military authorities. 

9.  On 14 July 2007, the applicant's immediate commander submitted a formal 
recommendation for discharge under the provisions of AR 635-200, paragraph 13-5, for 
misconduct. His reason for the proposed actions: the applicant has received numerous 
Article 15’s for dereliction of duty and has been counseled on many occasions. His 
continued failure to perform his duty in a satisfactory manner has been due to his lack of 
initiative and desire. His lack of motivation and attitude toward the U.S. Army render him 
a drain on his unit and without any redeeming value as a soldier. 

10.  Special Court Martial Order Number 9, dated 20 October 1977, published by 
Headquarters, 5th Infantry Division Artillery, Fort Polk, LA, shows the applicant was 
convicted of violation of Article 128 (Assault). Specification: the applicant did, on or 
about 11 July 1977, commit an assault upon PVT R.S.by striking him with his fists in the 
chest and eye.

	a.  The sentence, adjudged on 25 August 1977, consisted of reduction to the 
rank/grade of PV1/E-1, forfeiture of $50.00 pay per month for 3 months. and confined at 
hard labor for 30 days.

	b.  On 20 October 1977, the sentence was approved and would be duly executed.

11.  On 4 November 1977, the S-1 of the Service Battery of the 2nd Battalion was 
notified by the first lieutenant serving in the position of Adjutant, that the applicant's 
elimination processing was delayed because the applicant refused to accept nonjudicial 
punishment and demanded trial by court-martial. Formal charges were preferred sworn 
and read to the applicant on 20 July 1917. Subsequently, the applicant was tried and 
convicted on 25 August 1g7T by Special Court-Martial. Due to subsequent delays in 
processing the Record of Trial and appellate action, the Promulgating Order was not 
processed until 20 October 1977. The Administrative Discharge proceedings were 
resumed upon final disposition of the special court-martial case.

12.  On 8 November 1977, the applicant’s intermediate and local commander concurred 
with the recommendation for discharge under the provisions of AR 635-200, chapter 13, 
for misconduct, with an other than honorable discharge characterization of service.

13.  On 30 December 1977, the applicant was advised by counsel of the basis for 
separation under the provisions of AR 635-200, chapter 13, for misconduct. The 
applicant waived his rights to a board of officers, indicated that he understood that he 
could be issued a under other than honorable conditions discharge certificate; that he 
may be ineligible of many or all Army benefits; and that he may ineligible of his rights 
and benefits as a veterans under both Federal and State Law. Further. he 
acknowledged that he may expect to encounter substantial prejudice in civilian life 
because of a discharge under other than honorable conditions.

14.  On 17 January 1978, the separation authority approved the recommended 
discharge under the provisions of AR 635-200, chapter 13, for misconduct, with an 
under other than honorable conditions characterization of service.

15.  The applicant's DD Form 214 shows he was discharged on 25 January 1978, under 
the provisions of AR 635-200, chapter 13, paragraph 13-5a(1), by reason of 
misconduct, in the rank/grade of PV1/E-1. His service was characterized as under other 
than honorable conditions, and he received a separation program designator of JKA 
and a reentry code of 3. He completed 2 years and 17 days of net active service. 
Additionally, his DD Form 214 does not list any decorations or awards.

16.  There is evidence the applicant applied to the Army Discharge Review Board 
(ADRB) for review of his discharge within that board’s 15-year statute of limitations. A 
letter dated 25 September 1979 shows the ADRB notified the applicant they had 
determined that he was properly and equitably discharged and his request for a change 
in the character and/or reason of his discharge had been denied.

17.  He provides:

	a.  A letter from the Benefit Department (Kansas Division of Employment), dated 
10 May 1978 shows the applicant was notified of a delay in his request concerning a 
character of discharge determination.

	b.  A VA administration decision letter, dated 7 June 1978, shows the applicant is 
entitled to health care for any disabilities determined to be service connected. 

	c.  A letter dated 15 June 1978, shows the applicant was notified that the VA 
determined that his discharge from military service on 25 January 1978, was issued 
under conditions which constitute a bar to the payment for VA benefits.

	d.  A DD Form 149 and DD Form 293 both dated 13 October 2017, from his previous 
request for upgrade of his under other than honorable characterization of service. 

	e.  VA Form 21-4138 dated 12 July 2021, shows a representative from the 
Paralyzed Veterans of America states the applicant’s under other than honorable 
conditions characterization of service will prevent him from receiving all or certain 
benefits from the VA for Amyotrophic Lateral Sclerosis (ALS). He had an interview with 
the applicant on why he received this discharge. He also wrote a statement explaining 
his life and how he got where he is now. The applicant has had challenges his entire life 
but specifically in the military he told me he was treated different, not just for the color of 
his skin, but for how tall he was. Because of his stature he was challenged and picked 
on. All he wanted to do was serve his country to carry on the torch for his descendants. 
Specifically, he told him he was told to march in the middle and could not keep cadence 
with the other Soldiers because he was so tall. He would either trip or make others trip. 
He should have been in the rear of the marching order, but he was laughed at and 
made fun of He went on weekend leave to town and left his area clean and his boots 
shined. When he returned, his area was messy, and a bunch of dust and dirt was on his 
boots. A confrontation ensued but was cut off by an instructor. He stated he received 
Article 15s for various issues, but they did not warrant and match the punishment. He 
stated he felt baited into confrontations and then punished, and nothing would happen 
to the other Soldier. He often thought he was treated unfairly, especially, the type of 
discharge he received. Not only did it diminish him but also his service and future.

	f.  VA Form 21-4138 dated 12 April 2022, wherein the applicant states, in effect, he 
was treated with prejudice, picked on, and received multiple Article 15 punishments 
while he was in the Army. 

	g.  A VA rating decision, dated 26 April 2022, shows the applicant was granted a 
service connection for treatment purposes only for the following:

*	Amyotrophic lateral sclerosis
*	Left inguinal hernia
*	Scar, status post left inguinal herniorrhaphy 

18.  The ABCMR considered the applicant's request to upgrade his under other than 
honorable conditions characterization of service. On 3 February 2005, the Board 
notified the applicant that his previous request for upgrade of his discharge was denied. 
The Board determined the evidence presented did not demonstrate the existence of a 
probable error or injustice. 

19. Discharges under the provisions of AR 635-200, in effect at the time, sets forth the 
basic authority for the separation of enlisted personnel who are found unfit or unsuitable 
for further military service. Paragraph 13-5a(1) of the regulation provided, in pertinent 
part, that members involved in frequent incidents of a discreditable nature with civil or 
military authorities were subject to separation for unfitness.

20.  The Board should consider the applicant's overall record in accordance with the 
published equity, injustice, or clemency determination guidance.

21.  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 Interactive Personnel Electronic Records Management System 
(iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's 
Joint Legacy Viewer (JLV).  The applicant requests a change in characterization of 
service from Under Other Than Honorable Conditions to at least Under Honorable 
Conditions, General.  He indicated that physical and mental harassment is related to his 
request.  He stated in his application that he was he was treated differently (“harassed 
beaten and humiliated”) while in the military due to his being a black man and very tall 
(6’4”).  

    b.  The ABCMR summarized the applicant’s records.  Of note, the applicant entered 
active duty 09Jan1976.  His MOS was 13B10 Field Artillery Crewman.  He did not 
deploy.  He was discharged 25Jan1978 under provisions of AR 635-200 chapter 13 for 
misconduct.  He was recommended for separation for frequent acts of misconduct.  The 
record showed he was discharged after Special Court-Martial completed on 20Oct1977, 
found him guilty of having assaulted another solider on 11Jul1977.  The record also 
showed the following offences:  Found with possession of an automatic rifle in his locker 
(29Jul1976); disobeyed a lawful command (16Oct1976); wrongfully used and 
possessed marijuana (15Mar1977); behaved disrespectfully in language and 
deportment toward his staff sergeant (05May1977); failed to go to reported place of duty 
(11May1977)

    c.  The 11Jul1977 Mental Status Examination did not reveal any significant mental 
illness.  His psychiatric examination was normal.  The applicant was assessed to be 
mentally responsible and able to adhere to the right.  The 11Jul1977 Report of Medical 
Examination did not reveal any significant ongoing medical concerns.  His PULHES was 
111111.  He was qualified for separation.

    d.  The VA granted him service connection for treatment purposes for the following:  
Amyotrophic Lateral Sclerosis; Left Inguinal Hernia; and Scar, Status Post Left Inguinal 
Hernia Herniorrhaphy.  JLV records indicate he was diagnosed with ALS in July of 
2021.  His VA benefits were limited to medical care only.  A behavioral health diagnosis 
was not found.

    e.  In his application, the applicant provided some specific examples of mistreatment 
related to his race and/or height while in service.  There were no behavioral health 
records available for review.  The 03Sep2014 Secretary of Defense Liberal Guidance 
Memorandum and the 25Aug2017 Clarifying Guidance were considered; however, there 
was insufficient available medical records to reasonably support that the applicant had 
PTSD, TBI, MST or other boardable behavioral health condition(s) during his military 
service that could serve as a mitigating factor for the misconduct that resulted in his 
discharge from the Army.  Recommendation:  Because a mitigating BH condition was 
not found, a discharge upgrade could not be recommended that was based on liberal 
consideration guidance.  The Board could consider a discharge upgrade based on 
compassion (his ALS condition is terminal and requires a great deal of care beyond 
medical care); based on passage of time; or the knowledge that historically, there have 
been race based inequities that have been manifested in the U.S. Army.  That 
notwithstanding, the applicant’s assault on a fellow soldier would not be mitigated.

Kurta Questions

    (1)  Did the applicant have a condition or experience that may excuse or mitigate the 
discharge? No.  A behavioral health condition was not shown in records.	

    (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:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The Board carefully 
considered the applicant’s request, supporting documents, evidence in the records, the 
medical advisory opinion and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant's statement, record of service, 
the frequency and nature of the misconduct, the reason for separation and whether to 
apply clemency. After reviewing the supporting documentation, the Board found 
insufficient evidence of in-service mitigating factors to override the pattern of 
misconduct.  The applicant provided insufficient evidence of post-service achievements 
or letters of reference to weigh in support of a clemency determination.  Based on the  
preponderance of evidence available for review, the Board determined that the 
character of service the applicant received upon separation was not in error or unjust.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:xx	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: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 the overall merits of this case are insufficient 
as a basis to amend the decision of the Army Board for Correction of Military Records in 
Docket Number AR20040000137 on 3 February 2005. 


                                    	 
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 635-200, in effect at the time, set policies, standards, and 
procedures to ensure the readiness and competency of the force while providing for the 
orderly administrative separation of Soldiers for a variety of reasons.

	a.  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.  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.

	c.  Chapter 13 established policy and provided procedures and guidance for 
eliminating enlisted personnel found to be unfit or unsuitable for further military service.

		(1)  Paragraph 13-1 states A member may be separated when it is determined 
that they are unqualified for further military service because of unsatisfactory 
performance. This reason will not be used if the member is in entry level status. 

		(2)  Paragraph 13-2 states Commanders will separate a member for 
unsatisfactory performance when it is clearly established that in the commander's 
judgment, the member will not develop sufficiently to participate satisfactorily in further 
training and/or become a satisfactory soldier, or the seriousness of the circumstances is 
such that the member's retention would have an adverse impact on military discipline, 
good order, and morale.

		(3)  Paragraph 13-11 states the service of members separated because of 
unsatisfactory performance will be characterized as honorable or under honorable. 
conditions as warranted by their military record.

2.  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. 

	a.  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. 

	b.  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.

3.  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//
ABCMR Record of Proceedings (cont)	AR20230000265


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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