IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009982 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x_____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009982 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 for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150009982 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his dishonorable discharge. 2. The applicant states his discharge was unfair. He does not understand why he received a dishonorable discharge. There is no reason or justification that the Army can give him for such an unjust and impartial discharge. He served his country and feels he should be granted a more suitable and respectful discharge, not a dishonorable discharge. 3. The applicant provides a post-service letter from a clinical psychologist. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's service records are not available for review with this case. A search was undertaken to locate the applicant's military records which are necessary for the processing of his application. However, there are four documents available and sufficient for the Board to conduct a fair and impartial review of this case: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * National Archive (NA) Form 13308 (Certification of Military Service) for the period 30 May 1977 to 29 November 1979 * NA Form 13308 for the period 30 November 1979 to 27 December 1984 * General Court-Martial Order Number 48, dated 30 September 1982 3. The applicant's DD Form 214 shows he had prior service. He reenlisted in the Regular Army on 30 November 1979 and held military occupational specialty 63Y (Track Vehicle Mechanic). His last duty assignment was C Company, 2nd Battalion, 60th Infantry, Fort Lewis, WA. 4. On 30 July 1982, he was arraigned and tried at a general court-martial at Headquarters, 9th Infantry Division, for one specification of unlawfully raping another Soldier, one specification of committing sodomy with the Soldier by force and without her consent, one specification of stealing money from her, and one specification of attempting to murder the Soldier. The court sentenced him to a reduction to the lowest enlisted grade of E-1, a forfeiture of all pay and allowances, confinement at hard labor for 35 years, and a dishonorable discharge. 5. On 30 September 1982, the convening authority approved the sentence and except for the dishonorable discharge, ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. The applicant was confined. 6. On 26 June 1984, the U.S. Court of Military Review affirmed the findings of guilty and the sentence. 7. On 6 November 1984, the U.S. Court of Military Appeals denied his petition for a grant of review. 8. General Court-Martial Order Number 811, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS on 21 November 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed. 9. The applicant was discharged on 27 December 1984. His DD Form 214 shows: * his rank as private/pay grade E-1 * he received a dishonorable characterization of service * the authority for his discharge was paragraph 3-10 (court-martial) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * he completed 2 years, 4 months, and 15 days of active service during this period * he had lost time under Title 10, U.S. Code, section 972 from 15 April 1982 to 29 November 1983 and from 30 November 1983 to 27 December 1984 10. He provides a letter, dated 21 April 2015, from a clinical psychologist. The Board forwarded this letter to the Army Review Board's Agency clinical psychologist for review. As a result, the clinical psychologist rendered an advisory opinion on 1 September 2016 in the processing of this case. a. His DD Form 214 is the only service related military document in his file. The remainder of his military record cannot be found. His medical records for his period of service from 1979 to 1984 also cannot be located. Staff members of the Army Review Boards Agency contacted the National Archives and Records Administration (NARA) and requested copies of his military records but NARA reported that his records are unavailable. The only other information in his application is a statement, dated 21 April 2015, from a civilian clinical psychologist (Dr. John Hu--, PhD) which outlines the applicant's social, medical and behavioral health history. b. In his statement, Dr. Hu-- explains the applicant served in the military from approximately 1977 until 1985. He reports that he was court-martialed and convicted of the following charges: attempted murder, robbery, rape, and sodomy. He was incarcerated at Fort Leavenworth from 1985 to 1994. He was then released and placed on probation. He violated his probation in 2002 for marijuana use for which he served another 5 years in prison until 2007. c. Dr. Hu-- goes on to report that while the applicant was stationed in Bamberg, Germany, with the 123rd Maintenance Battalion (prior to his court-martial), he witnessed a serious tank accident in which the tank commander was mutilated and killed. He reported to Dr. Hu-- that, after this incident, he had difficulty sleeping and had frequent dreams about the accident, often awakening in a state of intense fear. Dr. Hu-- reports that a second incident occurred in 1981 when the applicant was stationed at Fort Lewis, WA, with the 2nd Battalion, 60th Mechanized Infantry. During unit war games, the applicant reported one of his unit members was run over by an armored personnel carrier (APC) while sleeping on the ground and he was in a motor vehicle accident suffering a concussion. He cannot remember what happened during the accident. However, no loss of consciousness was reported. Finally, during this same war game, a Soldier the applicant knew fell off of an APC and was crushed by it. (It is not clear if the applicant witnessed this last event). d. Dr. H-- reports the applicant has had the following symptoms of post-traumatic stress disorder (PTSD) since 1981: episodic nightmares involving these incidents, difficulty sleeping, isolation, avoidant behaviors and a dislike of being touched, irritability and anger, anxiety, and "blacking out." A review of the electronic military medical record (AHLTA) shows he was seen several times in 2005-2006 by primary care providers while he was incarcerated at Fort Leavenworth. These visits were related to complaints of chest pain and follow-up for non-insulin dependent diabetes mellitus. Of note, the applicant's medication list indicates he was prescribed bupropion 150mg twice daily while incarcerated. The reason he used this medicine is not documented. (Typically, bupropion is used to treat depression; it can also be used for smoking cessation). e. Given the fact that there are no available military records (except for the applicant's DD Form 214 and several sparse medical progress notes), the clinical psychologist cannot substantiate Dr. Hu--'s opinion that the applicant suffers from PTSD related to his military service. While it is unclear why the applicant was discharged dishonorably, it is safe to assume it was because of his court-martial for the charges outlined above. If this is indeed the case, it is very unlikely that there is a nexus between his reported PTSD symptoms and the offenses of attempted murder, robbery, sexual assault, and sodomy, as PTSD is not associated with these types of violent offenses. The PTSD would, therefore, not be considered a mitigating factor in his discharge. f. The only definitive statement that can be made is there is insufficient evidence to determine if the applicant developed PTSD or any other behavioral health condition while in the military. There is also insufficient evidence to determine if there is a nexus between any behavioral health or medical condition the applicant may have had and the misconduct which led to his separation from the Army. 11. He was provided with a copy of this advisory opinion to allow him an opportunity to submit a rebuttal or additional comments. He did not respond. REFERENCES: 1. AR 635-200 governs the separation of enlisted personnel. a. Paragraph 3-7a states 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 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 and paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain situations. c. Paragraph 3-10 states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed and paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court- martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which 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-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 the punishment imposed. DISCUSSION: 1. The applicant's complete records are not available for review. However, his available records show he was convicted by a general court-martial for rape, sexual assault, robbery, and attempted murder, and was sentenced to a dishonorable discharge. His trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 2. He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. 3. The law prohibits any redress by this Board of the finality of a court-martial conviction. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Based on his conviction, it appears his service did not meet the standards of acceptable conduct and performance of duty for Army personnel and did not rise to the level required for an honorable or a general discharge. 4. The medical advisory official stated PTSD is not associated with the types of violent offenses that resulted in his sentence to a dishonorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009982 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009982 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2