IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230001645 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to honorable or under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with Self-Authored Statements (two) * Attorney Brief * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Service Documents to include three Article 15s * Department of Veterans Affairs (DVA) Request for Information * DVA, Statement in Support of Claim * Medical Documents 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 AR20130003749 on 17 September 2013. 2. The applicant states: a. He had a hard upbringing. He fell out of a second story window at age nine and had back problems that have lasted throughout his life. He was always slower than the other kids at school and struggled to keep up with them. He was prescribed Ritalin by a psychologist and his mother would take him off of it because it made him drowsy. He was largely illiterate, because he did not know how to read or write and that is why he would drop out of high school and get into trouble. His mother thought the Army would be a good fit for him and he volunteered to fight in Vietnam, but the military would not let him go because he was an only son. b. During his 10-months of service his mother died of cancer, and he was regularly discriminated against as a black man from the city. He would often have to defend himself from the white Soldiers and he was frightened to file a formal complaint because of the potential distraction it would lead to within the unit. He hurt his back in basic training in Fort Leonard Wood, MO, an injury that would persist throughout his life. c. Ultimately his time with the Army came to an end when it was alleged that he tried to have sex with two Soldiers. These “specialists” were not members of the military, but rather prostitutes that attended a bar next to base regularly. He did talk to these prostitutes, but he never had or attempted to have sex with them. This incident led to the Army threatening a court-martial against him. He was assigned an attorney, but he did not really understand what was happening. At that time, he was still illiterate and did not know how to read or write. All he knew was that he felt he was in an environment that wanted him out and did not care about him. So, he decided to voluntarily request a discharge instead of facing a court-martial. He did not understand that it would limit his access to benefits down the road. Benefits that he is today in need of. d. He was extremely sad leaving the Army and when he went back to,. he committed crimes that he deeply regrets. He was convicted of manslaughter for accidently killing a friend of his in a fight, and he was also convicted of rape in a different incident, as well as numerous other crimes of lesser degrees. He truly regrets what he has done, and after paying his debt to society, he still feels the guilt of what he did over 40 years ago. While being incarcerated for these crimes, he knew he had to do better. So, he attended a university while in prison and began to learn how to read and write as best he could. e. After his time served, his life was still difficult. He was addicted to drugs most of his life, struggling to keep a job on a consistent basis. He did not let his addiction control him and he got married and had kids. Faith has helped him find meaning in life and has helped him stay on a straight path. Through this stability he has been able to get rid of his dependence on drugs and has been a more positive member of the community, and clean of drugs for the past 5 years. He is currently a quadriplegic after breaking his neck in an accident and he relies heavily on his family for both physical and financial aid. 3. Counsel states: a. Once the applicant’s experiences and conditions are evaluated through the lens of the Kurta memorandum of 2017, and his overall aptitude, it will be clear his discharge merits upgrade to honorable. Further, the Board should consider whether the applicant was part of Project 100,000, a program that targeted young black men, who had low mental aptitude. b. Private medical records from 2013 reveal the applicant was evaluated and diagnosed with drug abuse, post-traumatic stress disorder (PTSD), affective disorder (bipolar), and intermittent explosive disorder. It was recommended he undergo counseling and be started on psychiatric medicines. This diagnosis certainly explains his inability to cope and contributed to misconduct during his time of service and after. He also complained of auditory and visual hallucinations and was thought to be suffering from paranoia. He stated bipolar was in both sides of his family. The applicant suffered from chronic back pain while he was enlisted. In 2014, it was found on a computerized tomography scan that he has broad based disc protrusion. c. A licensed clinical phycologist determined he had borderline intellectual function with an IQ of 72. To have released the applicant from service with less than honorable conditions represent a severe injustice. The board should consider the applicant’s overall aptitude. He has serious psychopathology. He suffers from PTSD and bipolar disorder. d. He appears to qualify for a review under the Kuta memoranda. Today, the military gives greater attention to previously unrecognized disorders that affect thinking and behavior. His borderline intelligence must certainly be taken into account. His need for medical benefits is great and his mental disorders and low intelligence make him a candidate for the most liberal consideration. Under current military policies and regulations, the applicant's discharge should be upgraded. 4. The applicant enlisted in the Regular Army on 4 June 1971 for two years. His military occupational specialty was 76W (Petroleum Specialist). 5. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 13 October 1971, for failure to go at the time prescribed to his appointed place of duty on or about 8 October 1971; his punishment consisted of reduction to private/E-1 and forfeiture of $31.00 pay * 19 January 1972, for absenting himself from his unit on or about 11 January 1972 until on or about 19 January 1972; his punishment was forfeiture of $67 pay * 15 February 1972, for absenting himself from his unit on or about 4 February 1972 until on or about 7 February 1972; his punishment was forfeiture of $35 pay 6. The applicant was approved to attend off/on duty General Educational Development (GED) classes on 10 January 1972. On 18 February 1972, his commander requested he be removed from the GED classes because of frequent absence from classes. 7. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 11 January 1972 to 19 January 1972 and 4 February 1972 to 7 February 1972. 8. The applicant received formal counseling on several occasions between 24 January and 22 February 1972 for: * failure to repair (three) * found sleeping in the barracks during duty hours * missing from barracks detail * failed to follow clean-up instruction from immediate supervisor * AWOL * missing formation (two) and failed to report * failed to get up at the appointed time * went on sick call and did not return until the following day (two) * withdrawn from GED classes due to continuous absences * general unwillingness to work and disregard of superiors 9. Court martial charges were preferred against the applicant on 23 March 1972, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with unlawfully enticing two specialist fours (SP4) to engage in sexual intercourse for hire and reward and resisting apprehension on or about 1 March 1972. 10. The applicant consulted with legal counsel on 28 March 1972 and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge UOTHC, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service-in lieu of trial by court-martial under the provisions of Army regulation (AR) (Personnel Separations-Enlisted Personnel), Chapter 10. a. He understood as a result of such a discharge he shall be deprived of many or all Army benefits and that he may be ineligible for many, or all benefits administer by the Veterans Administration and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. b. He did not submit statements in his own behalf. 11. A Report of Mental Status Evaluation, dated 31 March 1972, shows the applicant had no significant mental illness, was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings and met retention standards. 12. His Report of Medical Examination, dated 3 April 1972, shows a history of hepatitis and that he “gets tired quick”. 13. The applicant’s commander formally recommended approval of his request for discharge on 4 April 1972 and noted due to the established pattern of misconduct and inability to cope with military life, it is felt that further attempts at rehabilitation would prove to be unsuccessful. The chain of command recommended approval. 14. The separation authority approved the applicant's request for discharge on 13 April 1972, for the good of the service, and directed he receive an UOTHC discharge. 15. The applicant was discharged on 17 April 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-200, Chapter 10, with Separation Program Number 246 [for the good of the service-in lieu of trial by court martial]. His service was characterized as UOTHC. He completed 10 months and 1 day of net active service, with 13 days of lost time. 16. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 17. The applicant provides: a. His DD Form 214, Service Documents, and Article 15 (three) as discussed above. b. DVA, Request for Information letter, dated 7 November 1978, shows an unfavorable determination had been made on 4 October 1978 regarding his discharge from the military service on 17 April 1972. It was found to have been issued under conditions which constitute a bar to the payment of DVA benefits. c. DVA, Statement in Support of Claim, signed 4 January 2016, shows the applicant wanted the records of the first upgrade appeal he submitted in 1978. d. Medical documents regarding medical and mental health issues rule/out (R/O) unspecified bipolar and related disorder (by history), unspecified trauma and stressor- related disorder, R/O PTSD (by history), unspecified disruptive, impulse control and conduct disorder, R/O unspecified personality disorder, and R/O unspecified neurocognitive disorder. 18. On 22 July 1980, the Army Discharge Review Board determined the applicant was properly discharge and denied his request for a change in the type and nature of his discharge. 19. On 17 September 2013, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of the record. 20. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) discharge. The applicant contends that he experienced racial discrimination and mental health conditions which mitigates his misconduct b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 4 June 1971; 2) The applicant received multiple non-judicial punishments and counselings during his military service for being AWOL, failure to be on time, not attending his GED classes, and general nonadherence to military standards and conduct; 3) Court martial charges were preferred against the applicant on 23 March 1972, for enticing two other male Soldiers to engage in sexual intercourse for hire and reward, and resisting apprehension on 1 March 1972; 4) The applicant was discharged on 17 April 1972, Chapter 10, with Separation Program Number 246 [for the good of the service-in lieu of trial by court martial]. His service was characterized as UOTHC. He completed 10 months and 1 day of net active service, with 13 days of lost time; 5) On 22 July 1980, the Army Discharge Review Board denied his request for a change in the type and nature of his discharge; 6) On 17 September 2013, the ABCMR denied his request for a change in the type and nature of his discharge. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and civilian medical documentation provided by the applicant were also examined. d. The applicant asserts he experienced racial discrimination and mental health conditions including low IQ which were mitigating factors in the circumstances that resulted in his separation. There was insufficient evidence beyond self-report the applicant was experiencing symptoms of a mental health condition, including low IQ while in active service. Also, there is insufficient evidence the applicant deployed to an active combat zone. A Report of Mental Status Evaluation, dated 31 March 1972, shows the applicant had no significant mental illness, was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings and met retention standards. A review of JLV was void of behavioral health documentation, and the applicant receives no service-connected disability for a behavioral health condition. e. The applicant provided documentation that he was evaluated by a clinical psychologist in April 2016. The purpose of the evaluation was a psychological disability evaluation performed at the request of the Department of Social Services in Oakland, CA. The applicant provided medical records to include psychiatric reports from 2013. The applicant has a history of being diagnosed with polysubstance abuse, mood disorder, antisocial personality disorder, possible bipolar disorder, intermittent explosive disorder, and PTSD. There was insufficient evidence presented in this evaluation or in the other documentation presented by the applicant that any of these mental health conditions were related to the applicant’s military service. The applicant demonstrated limited cooperation and put forth inconsistent effort during the evaluation. His IQ was determined to be in the borderline range. However, the applicant reported in his application to have completed his GED and some college courses while incarcerated and worked as a plumber after his discharge from the military. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing racial discrimination and mental health conditions, including low IQ that contributed to his misconduct. The applicant demonstrated a low IQ score during his disability evaluation, but he has also demonstrated the ability to obtain a GED and attend college courses. He has also been diagnosed with other mental health conditions many years after his discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing racial discrimination, mental health conditions, including low IQ that contributed to his misconduct while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, the applicant reported experiencing racial discrimination, and his contention is sufficient for the board’s consideration. However, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition, while on active service. He also contends his lower IQ was a mitigating factor in his misconduct. However, the applicant has also demonstrated the ability to obtain his GED, obtain employment as a plumber, and complete some college courses. This is evidence of sufficient intelligence to understand the difference between right and wrong and participate in his separation proceedings, which is consistent with the results of his Mental Status Exam during active service. After his discharge, the applicant does have a history of being diagnosed with various mental health conditions. However, there is insufficient evidence any of these conditions have been found to be service connected. There is ample evidence the applicant was experiencing significant difficulty adapting to the military, and he was involved repeated incidents of misconduct likely related to his difficulty adjusting to the military. However, he was ultimately discharged for solicitation of prostitution and resisting apprehension form military police. There is no nexus between the applicant’s report of a racial discrimination, mental health condition including low IQ and these types of misconduct given that: 1) these types of misconduct are not part of the natural history of the applicants reported mitigating conditions; 2) The applicant’s reported mitigating conditions do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing a mental health condition and experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 mental 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 :X :X :X 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 Number AR20130003749 on 17 September 2013. 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. Section 1556 of Title 10, U.S. 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. 2. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 3. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 4. 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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 5. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001645 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1