IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230004184 APPLICANT REQUESTS: in effect, reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) characterization of service. Additionally, he requests an appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •three self-authored statements, dated 18 January 2023, 10 March 2023, and 12-April 2023 •Military Service Records (30 Pages), dated 15 January 1975 to 17 March 1976 •DD Form 214 (Report of Separation from Active Duty) for the period ending 9 April 1976 •Army Board for Correction of Military Records (ABCMR), Docket NumberAR20040009977, Record of Proceedings (ROP), dated 21 July 2005 •DD Form 149, dated 12 December 2013 •Department of Veterans Affairs (VA), Statement of the Case, 4 October 2019 •ABCMR, Docket Number AR20180012437, ROP, dated 18 February 2021 •Request to Appeal ABCMR Decision, dated 10 January 2022 •Letter, National Veterans Legal Services Program (NVLSP), 29 July 2022 •Letter, ABCMR, 4 November 2022 FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious considerations of the applicant's case by the ABCMR in Docket NumbersAR20040009977 on 21 July 2005, AR20180012437 on 18 February 2021, andAR20220005118 on 4 November 2022. 2.As a new argument, the applicant states, in effect: a.The applicant was struck on the head with a potentially lethal weapon, causingserious head injury, which might cause any reasonable person to lose control. The applicant notes traumatic brain injury (TBI) as a condition related to his claim. b.The applicant’s contentions of racial motivation and bias, suppression ofevidence (Brady violation), prosecutorial misconduct, ineffective assistance from counsel, legal responsibilities of the Staff Judge Advocate, prejudicial statements, self-defense, and unpaid excess leave were previously considered by the Board in the aforementioned docket numbers. 3.The applicant enlisted in the Regular Army on 8 September 1972 for a 3-year period.The highest rank he attained was specialist/E-4.4.The applicant accepted nonjudicial punishment under the provisions of Article 15 ofthe Uniform Code of Military Justice on three occasions:a.On 11 February 1974, for behaving with disrespect towards his superiorcommissioned officer, on or about 3 January 1977, and absenting himself from his appointed place of duty, on or about 7 January 1974. His punishment consisted of reduction to private/E-2, forfeiture of $50.00 pay for one month, 14 days of extra duty, and 14 days of restriction. b.On 22 August 1974, for failure to go at the time prescribed to his appointed placeof duty, on or about 11 August 1974 and on or about 15 August 1974. His punishment consisted of reduction to private first class/E-3 and forfeiture of $88.00 pay for one month. c.On 2 April 1975, for going from his appointed place of duty without authority, onor about 17 March 1975. His punishment consisted of reduction to E-3, forfeiture of $25.00 pay, and extra duty for seven days. 5.Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice. However, the relevant DD Form 458 (Charge Sheet) is not available for review.6.Special Court Martial Order Number 9, issued by Headquarters, 1st Support Brigade, dated 22 August 1975, shows:a.The applicant was found guilty of the following charges:•committing an assault on Private , by cutting him on his left forearm with a knife, on or about 9 February 1975•wrongfully having in his possession two ration cards in his name, on or about 9 May 1975 b.The court sentenced him to reduction to the grade of private/E-1, forfeiture of$229.00 pay per month for six months, confinement at hard labor for six months, and a bad conduct discharge. The sentence was adjudged on 30 June 1975. c.On 22 August 1975, the convening authority approved the sentence, and therecord of trial was forwarded for appellate review. 7.Special Court-Martial Order Number 537, issued by Headquarters, U.S. DisciplinaryBarracks, Fort Leavenworth, KS, on 21 November 1975, shows the applicant wasrestored to duty and placed on excess leave pending completion of the appellatereview. 8.The U.S. Court of Military Appeals denied the petition of the applicant for a grant ofreview on 17 March 1976. 9.Special Court-Martial Order Number 95, issued by Headquarters, U.S. DisciplinaryBarracks, Fort Leavenworth, KS, on 23 March 1976, shows the sentence was finallyaffirmed, the provisions of Article 71(c) had been complied with, and the sentence wasordered duly executed. 10.The applicant was discharged on 9 April 1976, under the provisions of ArmyRegulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, withseparation code JJD and reenlistment code RE-4. His DD Form 214 confirms hischaracterization of service was UOTHC. He was credited with 3 years, 2 months, and8 days of net active service, with 144 days of lost time, and 141 days of excess leaveutilized from 21 November 1975 to 9 April 1976 pending completion of appellate review. 11.The Army Discharge Review Board (ADRB) reviewed the applicant’s request for adischarge upgrade on 18 August 1977. The ADRB determined he was properlydischarged. His request for relief was denied. His subsequent request forreconsideration was reviewed on 23 June 1980. The ADRB upheld the previousdetermination and denied his request for relief. 12.The applicant petitioned the ADRB a third time on 26 June 2000. The ADRB deniedhis request for reconsideration and referred the applicant to the ABCMR. 13.The applicant petitioned the ABCMR for an upgrade of his UOTHC characterizationof service. The Board considered his request on 21 July 2005. The Board voted to denyrelief and determined the overall merits of the case were insufficient as a basis forcorrection of the record. 14.The applicant petitioned the ABCMR for a reconsideration on 12 December 2013.The ABCMR determined the request for reconsideration was not received within oneyear of the ABCMR’s original decision. His request was administratively closed on 7 February 2014. 15.The ABCMR reviewed the applicant’s request for an upgrade of his UOTHCcharacterization of service on 18 February 2021. After careful consideration, the Boarddetermined the evidence presented did not demonstrate the existence of a probableerror or injustice. His request for relief was denied. 16.The applicant requested reconsideration of his previous request for a dischargeupgrade on 12 January 2022. The ABCMR reviewed the applicant’s request anddetermined that no new evidence or argument was provided. The case wasadministratively closed on 4 November 2022. 17.On 6 September 2023, in the processing of this case the U.S. Army CriminalInvestigation Division, searched their criminal file indexes, which revealed a Report ofInvestigation, dated 28 April 1975, wherein it states, an investigation revealed that on9 February 1975, [the applicant] assaulted [redacted] by cutting him with a knife,resulting in a deep laceration and superficial cuts. The two individuals had a verbalargument over a girlfriend. [The applicant] produced a knife. While [redacted] wasretreating, he hit [the applicant] with his nunchucks. [The applicant] followed him into thestreet and inflicted numerous lacerations to him. 18.Additionally, a letter was mailed to the applicant on 7 September 2023, to requestcopies of medical documents to support his claim of TBI. To date, no additionaldocumentation has been received. 19.The applicant provides numerous documents from his service record which havebeen previously reviewed by the Board. Additionally, he provides: a.A VA Statement of the Case, dated 4 October 2019, which shows his period ofservice from 8 September 1972 to 9 April 1976 is not considered honorable for VA purposes. b.A letter from the NVLSP, dated 29 July 2022, which shows the NVLSPdetermined they were not able to offer him assistance with his case. 20.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, theauthority under which this Board acts, the ABCMR is not empowered to set aside aconviction. Rather, it is only empowered to change the severity of the sentence imposedin the court-martial process and then only if clemency is determined to be appropriate.Clemency is an act of mercy or instance of leniency to moderate the severity of thepunishment imposed. 21.MEDICAL REVIEW: a.The Army Review Boards Agency (ARBA) Medical Advisor was asked to reviewthis case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b.The applicant is again applying to the ABCMR requesting an upgrade of his 9 April1976 under other than honorable discharge. On his DD 149, the applicant claims a traumatic brain injury (TBI) is related to his request. c.The Record of Proceedings along with the prior ROPs and denials outline theapplicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 8 September 1972 and was discharged on 9 April 1976 under the provisions provided 11-2 of AR 635-200, Personnel Management – Enlisted Personnel (27 August 1975): Bad Conduct Discharge. d.Seven prior requests for a discharge upgrade have previously denied by ARBA.Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. e.A Special Court Martial Order dated 22 August 1975 shows the applicant wasfound guilty of: “assault upon Private , by cutting him on his left forearm, left abdomen, thumb, and index finger with a dangerous weapon, to wit: a knife.” “violate a lawful general regulation, to wit: paragraph 16e, United States Army Europe Regulation 632-10, dated 16 July 1970, by wrongfully having in his f.No medical documentation was submitted with the application. JLV shows hereceives care as a non-service-connected veteran with his only diagnosed mental health disorder being “Alcohol abuse with alcohol-induced mood disorder.” g.It is the opinion of the ARBA medical advisor that a discharge upgrade isunwarranted. Kurta Questions: (1)Did the applicant have a condition or experience that may excuse or mitigate thedischarge? Applicant claims TBI. (2)Did the condition exist or experience occur during military service? Applicantclaims TBI (3)Does the condition or experience actually excuse or mitigate the discharge? NO:The applicant has submitted no medical documentation indicating a diagnosis of a mental health condition or history of a TBI. Review of the VA medical records indicates that the applicant has not been diagnosed with either a service connected or nonservice connected BH condition other than an alcohol indued mood disorder. However, as per Liberal Consideration guidance, the applicant’s self-assertion alone merits consideration by the board. h.However, a mental health condition and/or a TBI would most likely would not haveaffected his ability to differentiate right from wrong and adhere to the right and therefore could not mitigate assault of a fellow Soldier. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation, and published Department of Defense guidance for liberal and clemencydeterminations requests for upgrade of his characterization of service. Upon review ofthe applicant’s petition, available military records and the medical review, the Boardconcurred with the advising official finding no medical documentation indicating adiagnosis of a mental health condition or history of a TBI. The opine noted a mentalhealth condition and/or a TBI would most likely would not have affected his ability todifferentiate right from wrong and adhere to the right and therefore could not mitigateassault of a fellow Soldier. The Board determined the applicant no post serviceachievements or letters of support to attest to his honorable conduct for the Board toweigh a clemency determination. 2.The Board agreed there is insufficient evidence of in-service mitigating factors toovercome assaulting another Solider and inflicting bodily harm with a knife. The Boarddetermined the applicant has not demonstrated by a preponderance of evidence anerror or injustice warranting the requested clemency relief, specifically an upgrade of theunder other than honorable conditions (UOTHC) discharge. ABCMR is only empoweredto change the severity of the sentence imposed in the court-martial process and thenonly if clemency is determined to be appropriate. This board is not an investigative body. The Board determined despite the absence of the applicant’s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting medical documentation and his service record has insufficient evidence to support the applicant contentions of a discharge upgrade based on mental health conditions. Therefore, the Board found reversal of the previous Board decisions is without merit and denied relief. 3.The applicant’s request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision. As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case. 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 Board found 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 ABCMR set forth in Docket Number AR20040009977 on 21 July 2005, AR20180012437 on 18 February 2021, and AR20220005118 on 4 November 2022. Microsoft Office Signature Line... 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 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence oropinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to ahearing before the ABCMR. The Director or the ABCMR may grant a formal hearingwhenever justice requires. 2.Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that anapplicant seeking corrective action by the ARBA be provided with a copy of anycorrespondence and communications (including summaries of verbal communications)to or from the Agency with anyone outside the Agency that directly pertains to or hasmaterial effect on the applicant's case, except as authorized by statute. ARBA medicaladvisory opinions and reviews are authored by ARBA civilian and military medical andbehavioral health professionals and are therefore internal agency work product.Accordingly, ARBA does not routinely provide copies of ARBA Medical Officerecommendations, opinions (including advisory opinions), and reviews to Army Boardfor Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel. The version in effect at the time provided that: a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 11 provided that an enlisted person would be given a bad conductdischarge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 4.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, USC, Section 1552, the authority underwhich this Board acts, the ABCMR is not empowered to set aside a conviction. Rather,it is only empowered to change the severity of the sentence imposed in the court-martialprocess and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; traumatic brain injury; sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. //NOTHING FOLLOWS//