IN THE CASE OF: BOARD DATE: 1 October 2021 DOCKET NUMBER: AR20200008079 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, at the time of his discharge, the Army had no probable cause for separating him under other than honorable conditions; he was not facing a court- martial, nor was his leadership considering other disciplinary action against him. The applicant maintains he suffered from anxiety and major depression because the Army had falsely accused him of being involved in criminal activity; however, he argues his chain of command had no proof. The applicant states he became tired of all the harassment and stress; his sergeant major told him it would just be better if the applicant left the unit because the applicant's company commander and the CID (U.S. Army Criminal Investigation Command) were not going to stop hounding the applicant. The applicant asserts, when he separated, he was under the wrong impression they were transferring him to the States so he could finish out the remainder of his 4-year enlistment. The applicant attributes racism as the Army's motivation for forcing him out, and asserts his leadership had a personal vendetta against him; in effect, they resented him because he was a black man who insisted they treat him like a man. 3. The applicant's service records show: a. On 29 June 1976, the applicant enlisted into the Regular Army for 3 years. Upon completion of initial entry training, and the award of military occupational specialty 11B (Infantryman), orders assigned the applicant to Germany, and he arrived at his unit on 9 November 1976. Effective 1 October 1977, the applicant's chain of command promoted him to specialist four (SP4)/E-4. b. On or about 22 October 1977, the applicant's leadership completed a DA Form 2166-5 (Enlisted Evaluation Report) for the rating period June through October 1977; the applicant held the position of rifleman/driver, and his rater and indorser both spoke highly of the applicant's duty performance. The applicant's rater lauded the applicant as "one of the best track driver(s) I have ever seen." On or about 1 November 1978, the applicant's leadership again prepared a DA Form 2166-5 on the applicant, this time addressing the rating period October 1977 through October 1978. The both the rater and indorser noted the applicant performed his duties well, but needed work on appearance and leadership. c. On 9 January 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to report on time to physical training formation; for pushing a fellow Soldier down a flight of stairs; and for negligently failing to secure his assigned weapon. The imposing official's punishment included a suspended reduction from SP4 to private first class (PFC)/E-3; however, on 24 January 1979, the imposing official vacated the suspended reduction (the applicant's service record does not show the reason for the vacated suspension). d. On 19 April 1979, the applicant's commander declined to award the applicant the Army Good Conduct Medal (1st Award) for the period 29 June 1976 through 28 June 1979; the commander's stated reason was "Misconduct." e. On 29 April 1979, orders honorably discharged the applicant so he could immediately reenlist; his DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 10 months, and 1 days of his 3-year enlistment contract, and the report listed the award of a marksmanship qualification badge. On 30 April 1979, the applicant reenlisted for 4 years. f. On 4 March 1980, the applicant accepted field-grade level NJP for possessing more than one ration card (Army Europe (AE) Form 1150), and for possessing stolen military property (i.e., an AE Form 1150); punishment included reduction to private/E-1. g. On 25 March 1980, the military police (MP) apprehended the applicant and a German National and charged the applicant with the illegal transfer and the German National with possession of U.S. tax-free items. The MP report (DA Form 3975) stated a confidential source had advised the MPs a German National had given the applicant $590, after which both entered a Post Exchange, and the applicant purchased stereo equipment and placed the equipment in the German National's car. The MPs stopped the German National as he attempted to leave the military base, and a search of the German National's car revealed the stereo equipment. After the MPs warned the applicant of his rights, the applicant provided a sworn statement, wherein he stated: (1) The applicant acknowledged buying the stereo equipment after the German National had given him money. The applicant claimed he was going to pick up the stereo equipment later from the German National; he had decided to place the equipment in the German National's car because he wanted to move the equipment off- post and bring it to his girlfriend's residence. The applicant refused to provide contact information for his girlfriend because "she doesn't have anything to do with this." (2) The MP investigator disclosed the German National had claimed the stereo equipment was his because he had paid for it. The applicant maintained the German National had just loaned him the money so he could buy the stereo, and he intended to pay the money back. The applicant denied buying any stereo equipment for his girlfriend or other German Nationals. h. On 7 June 1980, the applicant's unit preferred court-martial charges against him for violating Article 92 (Violating a General Regulation), UCMJ, in that he wrongfully transferred goods to a person not authorized to purchase such goods. On or about 7 June 1980, the applicant's commander prepared a 1st Armored Division (AD) Form 27 (Personal Evaluation to Accompany Court-Martial Charge Sheets), in which he noted the applicant had been involved in several incidents of criminal misconduct within the civilian community. After a recent NJP for possessing two ration cards, the chain of command rehabilitatively transferred the applicant; however, the applicant subsequently became the subject of an extensive customs investigation for black-marketing activities. i. On 20 June 1980, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his written request, the applicant affirmed no one had subjected him to coercion and counsel had explained the implications of the applicant's request; the applicant further acknowledged he was guilty of the charge, and he elected not to submit statements in his own behalf. j. On 1 July 1980, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge. k. On 9 July 1980, a doctor from the applicant's military health clinic requested a psychiatric consult. The doctor wrote, "While doing a mental status evaluation for chapter 10 of this XX year old black male, I found him totally out of touch with reality - not aggressive." The health clinic doctor's provisional diagnosis was "? Schizophrenia." On 10 July 1980, T__, Major, Medical Corps reported, "No significant psychopathology to warrant disposition through medical channels." The doctor continued, "He exhibited no delusional production - he appeared to have an inflated idea of his own abilities, but he is not psychotic. He has a long history of marginal adaptation to life demands. He exhibits little concern over his present situation but understands the implications of the discharge and is willing to take it." The doctor's impressions were, "appears somewhat schizoid but not enough for a psychiatric diagnosis - No Psych Diagnosis." l. On 20 July 1980, the applicant's health clinic physician rendered a DA Form 3822-R (Report of Mental Status Evaluation), in which he commented, "I thought the patient had some schizoid traits and referred him to the psychiatrist at USAHN, who thinks he is 'alert, coherent, relevant with no evidence of thought disorder with intact judgment, somewhat schizoid but not enough for psychiatric diagnosis.'" m. On 4 August 1980, separation orders discharged the applicant under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 years, 3 months and 5 days of his 4-year reenlistment contract. The DD Form 214 listed no awards or decorations. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, on a case-by-case basis, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. 5. The applicant argues the Army had no probable cause for separating him under other than honorable conditions; he was not facing a court-martial, nor was his leadership considering other disciplinary action against him. He maintains he suffered from anxiety and major depression because the Army had falsely accused him of being involved in criminal activity, despite having no proof. The applicant attributes his adverse discharge to racism and his chain of command's vendetta against him. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was included as a punishment, could request separation in- lieu of trial by court-martial under chapter 10, AR 635-200; such requests were voluntary and the Soldier had to affirm no one had coerced him/her into accepting this type of discharge. The Manual for Courts-Martial then in effect showed Article 92 (Violation of a General Regulation) carried a punitive discharge among its maximum punishments. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 6. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation does not contain a psychiatric diagnosis for consideration. During the separation process, the applicant underwent a thorough evaluation due to a physician’s concern for a thought disorder. The consulting behavioral health provider did not diagnose the applicant and cleared him for separation. Moreover, the VA has conducted Compensation and Pension (C&P) exams with no behavioral health diagnosis made. However, even if the applicant had a psychiatric condition, after reviewing the basis for separation and events and statements made while in-service about the misconduct, the misconduct involved pre- meditated, conscious, and thought-out actions to included coordinating receipt of the exact value of the equipment, buying and transferring the equipment to the other individual, attempts to allude detection, arriving at alternate explanations when interviewed, and overall presented with coherent thought processes. These are not characteristic of a psychiatric disorder. Accordingly, an upgrade is not recommended from a behavioral health standpoint. b. The applicant was discharged on 04 August 1980 under Chapter 10, in lieu of court martial, with an Under Other than Honorable characterization. Court Martial charges included wrongfully transferring goods to a person not authorized and “several incidents of criminal misconduct within the civilian community;” he was the subject of “an extensive customs investigation for black-marketing activities.” Additional misconduct within this enlistment included possessing more than one ration card and possessing stolen military property; the ration cards. The applicant’s prior enlistment included the following misconduct: failing to report, pushing a fellow Soldier down a flight of stairs, and negligently failing to secure assigned weapon. The applicant requests a characterization upgrade to Honorable asserting “the Army had no probable cause” for separating him with an Under Other than Honorable characterization as “he was not facing court-martial nor was his leadership considering other disciplinary action against him.” The applicant contended he had anxiety and depression after being “falsely accused” of involvement in criminal activity. The applicant asserts a Sergeant Major told him it would be best if he left allegedly telling the applicant Command and CID would continue to focus on him. Lastly, the applicant contends racism and leadership’s “persona vendetta against him” also influenced his discharge. c. Due to the period of service, active duty electronic medical records are void. d. The applicant is not service connected. While VA records are void of appointments, they do indicate the applicant, at some point, had Compensation and Pension (C&P) exams. The resulting diagnoses were related to medical symptoms; although determined to not be service connected. The applicant was not diagnosed with any behavioral health condition during the C&P process. e. The electronic packet contained a July 1980 behavioral health consult by a physician due to concerns for Schizophrenia; this was not a diagnosis and the individual expressing concern was not a behavioral health provider. Although the consulting behavioral health provider stated “appears somewhat schizo,” this is not a term used in the professional field and could have been referencing related personality disorders rather than Schizophrenia. As such, it is unclear what the provider was attempting to express. Irrespective, the provider’s final conclusion was the applicant did not have a psychiatric condition, knew the consequences of his action and request for a Chapter 10, did not exhibit any thought disordered processes, and overall presented with a normal mental status; he was cleared with no diagnosis. The referring physician completed the Chapter Mental Status Exam (MSE) noting the findings and clearance. BOARD DISCUSSION: 1. 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 equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post- service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, 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 for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): 1. AR 635-8 (Separation Processing and Documents), currently in effect, states Soldiers separated with less than an honorable character of service will show the following comment in item 18v (Remarks): "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 2. As a result, amend the applicant's DD Form 214, for the period ending 4 August 1980, by adding the following comment to item 18: "CONTINUOUS HONORABLE SERVICE FROM 19760629 TO 19790429." REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the commanders gave the Soldier a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. On approval, an under other than honorable conditions character of service was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 92 (Violating a General Regulation), UCMJ, included a punitive discharge as one of its maximum punishments. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) 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 (PTSD); Traumatic Brain Injury (TBI); 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. 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. 6. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, on a case-by-case basis, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008079 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1