IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20160011518 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: 30 August 2016 DOCKET NUMBER: AR20160011518 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: 30 August 2016 DOCKET NUMBER: AR20160011518 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the applicant's bad conduct discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. 2. Counsel states: a. The applicant is suffering from cancer and needs placement in a Department of Veterans Affairs (VA) facility with 24-hour care by nurses, doctors, and aides. b. The Claremore, Oklahoma VA will accept the applicant with a new, upgraded DD Form 214 (Certificate of Release or Discharge from Active Duty). She is very apologetic about her past and wishes to improve her life at this point and be forgiven for her past conduct. c. The applicant wishes to be placed in a VA facility with her peers. She also wishes to reside there until her time has expired. Hospice, along with care at the VA, will give her a sense of dignity and respect. d. She again wishes to apologize for anything not becoming of a military officer (sic). She is grateful for serving the U.S. Army and her country. 3. Counsel provides the applicant's DD Form 214 and 7 pages of medical records pertaining to the applicant. 4. It was recently reported that the applicant died on 25 June 2016. The request is now being considered in the interest of the deceased applicant’s family. 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 enlisted in the Regular Army on 11 August 1986. The highest rank/grade she attained during her period of military service was specialist/E-4. 3. The applicant's records include a statement from her immediate commander that shows she received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on or around October 1988 for being drunk and disorderly. The statement also indicates she was enrolled in the Army Drug and Alcohol Prevention and Control Program on 17 October 1988. 4. She received a General Officer Memorandum of Reprimand (GOMOR) on 20 December 1988 for operating a motor vehicle while drunk. 5. A DA Form 3647-1 (Inpatient Treatment Record Cover Sheet), dated 18 September 1989, shows she was diagnosed with major depression, psychoactive substance use disorder, alcohol dependency, and situational adjustment disorder with mixed mood. 6. She was found guilty by a special court-martial on 17 October 1989 of one specification of simple arson and one specification of breaking restriction, both on or about 9 September 1989. The sentence, consisting of forfeiture of $450.00 pay for 4 months, confinement for 5 months, and a bad conduct discharge, was approved on 27 December 1989. The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 7. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 30 April 1990. 8. The sentence having been affirmed and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed on 10 August 1990. 9. The applicant was discharged on 31 August 1992, as a result of a court-martial, with a bad conduct discharge. 10. The applicant's medical records, provided by counsel, pertain to her current health status. 11. In the processing of this case an advisory opinion was received from the Chief, Behavioral Health Division, Office of The Surgeon General (OTSG), on 27 July 2016. The advisory official opined: a. The applicant requested that the Board upgrade her bad conduct discharge so that she would be eligible for VA hospice care. The OTSG was asked to determine if the applicant’s behavioral health condition of major depression existed at the time of her military service and if this condition was a mitigating factor in the misconduct that resulted in the applicant’s discharge. This opinion is based solely on the information provided by the Board as the Department of Defense electronic medical record was not in use at the time of her service. b. In October 1988, the applicant was arrested by military police for drunk and disorderly conduct and given a Field Grade Article 15. Two months later, in December, she was found guilty of simple arson and breaking restriction and sentenced to a forfeiture of pay for 4 months, confinement for 5 months and a bad conduct discharge. c. The only behavioral health record provided indicates the applicant was hospitalized in September 1989 at which time she was diagnosed with major depressive disorder, alcohol dependence, and situational adjustment disorder with mixed mood. This confirms that a behavioral health condition existed at the time of her service. As for the role of this condition as a mitigating factor in her misconduct, there is a clear connection between her alcohol use and the misconduct. It is plausible that the applicant used alcohol to alleviate her depressive symptoms which would mitigate her misconduct. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Paragraph 3-7a provides that 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. c. Paragraph 3-7b provides that 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. 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. 3. The Manual for Courts-Martial states: "In aggravated arson, danger to human life is the essential element; in simple arson, it is injury to the property of another. In either case, it is immaterial that no one is, in fact, injured. It must be shown that the accused set the fire willfully and maliciously, that is, not merely by negligence or accident." 4. According to the World Health Organization website, the term "psychoactive substance use disorder" encompasses acute intoxication, harmful use, dependence syndrome, withdrawal state, withdrawal state with delirium, psychotic disorder and amnesic syndrome. For a particular substance, these conditions may be grouped together as, for example, alcohol disorders, cannabis use disorders, stimulant use disorders. Psychoactive substance use disorders are defined as being of clinical relevance. DISCUSSION: 1. The evidence shows the trial by court-martial was warranted by the gravity of the offense charged. The evidence also shows the applicant’s conviction and discharge were effected in accordance with applicable laws and regulations. 2. Her record of indiscipline consisted of NJP for being drunk and disorderly, a GOMOR for operating a motor vehicle while drunk, and a special court-martial conviction for simple arson and breaking restriction. 3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 4. The evidence shows the applicant was hospitalized in September 1989 at which time she was diagnosed with major depressive disorder, alcohol dependence, and situational adjustment disorder with mixed mood. 5. An advisory official at OTSG confirmed that a behavioral health condition existed at the time of the applicant’s service and that there is a clear connection between her alcohol use and her misconduct. It is plausible that the applicant used alcohol to alleviate her depressive symptoms which would mitigate her misconduct. 6. A conclusion that her mental health condition mitigated her misconduct would support a decision to grant clemency in the form of upgrading her discharge to general, under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011518 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011518 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2