IN THE CASE OF: BOARD DATE: 25 January 2021 DOCKET NUMBER: AR20200002690 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * his separation code consistent with "for the convenience of the government" * his reenlistment code (RE code) as "RE-1" instead of "RE-4" * his narrative reason for separation as "for the convenience of the government" instead of "as a result of court-martial" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 4 December 2019, with self- authored statement * U.S. Army Certificate of Enlistment, dated 19 January 1982 * DA Form 87 (Certificate of Training), dated 28 October 1982 * Letter of Appreciation, undated (Fort Leonard Wood Choir Participation) * Letter of Appreciation, dated 10 June 1983, with chain of command endorsements * U.S. Army Armor Center (USAARMC) Form 1196C (Record Fire Scorecard), dated 12 August 1983 * Letter of Commendation, dated 27 September 1983, with chain of command endorsements * Letter of Appreciation, dated 2 February 1984, with chain of command endorsements * Certificate of Training, Field Sanitation, dated 19 April 1984 * DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]), dated 4 March 1985, with partial witness statement * Special Court-Martial Order Number 47, issued by Headquarters, V Corps, Federal Republic of Germany on 15 October 1985 * Orders 127-5, issued by the U.S. Army Correctional Activity, Fort Riley, KS on 2 July 1986 * DD Form 214, for the period ending 10 July 1986 * Veterans Administration/Department of Veterans Affairs (VA) Problem List * applicant's statement, applicant's spouse's statement, and third-party character reference letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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: a. Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge that was not to be executed based on the "Action" summary paragraph of the special court-martial order. He was made aware that his BCD should be upgraded based on an error or injustice committed, because the "Action" summary paragraph of the special court-martial order did not support the BCD. b. His average conduct, job performance, and knowledge of duties were good and resulted in high laudatory comments to include letters of appreciation and commendation, resulting in two on the spot promotions. His record of promotions shows he was generally a good Soldier. He was so close to finishing his tour of duty that it was unfair to give him a bad discharge, especially since the action summary of the special court martial was not followed. c. His record of NJP shows only an isolated or minor offense, in which a noncommissioned officer (NCO) grabbed him and snatched him around (see attached copy of his statement). This incident happened after duty hours; he had been drinking and had an undiagnosed schizophrenia condition. d. His special court-martial conviction resulted from only isolated or minor offenses, beginning from 6 February snowballing through the week of 15 April 1985, in which he felt he was being targeted and then everything crashed. e. His ability to serve was impaired by his youth and immaturity. He had in his possession a false ID card, which enabled him to get into off-base night clubs; however, he never used the ID. The death of his best friend and his undiagnosed and untreated psychiatric problems impaired his ability to serve. His personal problems, heavy drinking, nightmares, and insomnia impaired his ability to serve. He should have been medically discharged because he was not medically qualified to serve, due to his alcohol use, undiagnosed post-traumatic stress disorder (PTSD), and schizophrenia, for which he tried to self-medicate. f. His discharge was improper because his chain of command did not follow the "Action" summary of the special court-martial order. g. He has been a good citizen since his discharge and has raised seven children. He retired as a full-time school bus driver and elementary school custodian. 3. In his separate, self-authored statement, the applicant outlines his personal history and his service in the Army, including an incident in which a friend of his was hit in the face by a flare, resulting in his death. This event changed his life dramatically; he started drinking heavily to self-medicate and to help cope with the depression, anxiety, anger, and displaced emotions. Several doctors have told him he has PTSD, nightmares, and night terrors. He has been prescribed medication that he takes on a regular basis for anxiety, depression, hypertension, and insomnia. He became an alcoholic while self-medicating, which led to cirrhosis of the liver. He believes if he had been given medical treatment and counseling after his friend's death, he would not have become an alcoholic. 4. The applicant enlisted in the Regular Army on 21 July 1982. He completed training in military occupational specialty 12B (Combat Engineer) on 28 October 1982. Following the completion of his initial entry training, he was assigned to Company C, 19th Engineer Battalion, Fort Knox, KY. 5. The applicant received the following letters of appreciation, recognition, or congratulations between 10 June 1983 and 2 February 1984 as indicated below: * a letter of appreciation from the Chaplain Activities Program for his participation in the post choir during his period of training at Fort Leonard Wood, MO * a letter of appreciation, dated 10 June 1983, from the Commander, Company D, 13th Battalion, 4th Training Brigade, U.S. Army Armor Center and Fort Knox, for his outstanding performance of duty during the unit's repelling site training on 6 June 1983 (with chain of command endorsements) * a letter of commendation, dated 27 September 1983, from the Commander, 194th Armored Brigade, Fort Knox, KY, for the applicant's selection as the "Colonel's Orderly" on 24 August 1983 (with chain of command endorsements) * a letter of appreciation, dated 2 February 1984, from the U.S. Army Armor and Engineer Board, Fort Knox, KY, for his participation during the period 3 October 1983 through 23 December 1983, in the Boards Engineer Test Division's Follow On Evaluation on the M1 28 Ground Vehicle Mine Dispenser System (with chain of command endorsements) 6. The applicant provided a copy of a Record Fire Scorecard, dated 12 August 1983, which shows he qualified as an expert with an unidentified weapon system. 7. The applicant accepted NJP on 11 March 1984, under the provisions of Article 15 of the UCMJ, for failing to go at the prescribed time to his appointed place of duty, on or about 9 May 1984 (only page one of the form is of record but it shows there was a continuation of offenses). 8. The applicant provided a Certificate of Training, dated 19 April 1984, which shows he completed the Field Sanitation Team Training Course. 9. The applicant was reassigned, on or about 17 August 1984, to Company C, 54th Engineer Battalion, Federal Republic of Germany. 10. The applicant accepted NJP on 4 March 1985, under the provisions of Article 15 of the UCMJ, for assaulting an NCO; for disobeying a lawful order from an NCO; and for being disrespectful toward an NCO, all offenses occurring on or about 6 February 1985. 11. Before a special court-martial on or about 30 July 1985, in the Federal Republic of Germany, the applicant was found guilty of disobeying an order from a superior NCO, on or about 19 April 1985; and the additional charge of disobeying an order from a superior NCO, on or about 15 April 1985. a. The recommended sentence included the applicant's separation from service with a BCD; confinement for six months, forfeiture of $413.00 pay per month for six months, and reduction to the grade of E-1. b. The ACTION section of the Special Court-Martial Order Number 47, issued by Headquarter, V Corps on 15 October 1985, states: "In the case of [applicant], U.S. Army, C Company, 54th Engineer Battalion, APO New York 09026, the sentence is approved and, except for the part of the sentence extending to bad-conduct discharge, will be executed." 12. In accordance with military justice regulations, the applicant's case would have been referred to the U.S. Army Court of Military Review for review and affirmation prior to his actual discharge. Although a copy of this action is not of record, the fact that the applicant was not discharged until nine months after the court-martial convening authority approved his discharge supports the conclusion that his case was properly reviewed and affirmed by the U.S. Army Court of Military Review. 13. Orders 127-5, issued by the U.S. Army Correctional Activity, Fort Riley, KS, on 2 July 1986, ordered the applicant's discharge effective 10 July 1986. 14. The applicant was discharged on 10 July 1986. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, due to a court-martial conviction, and his character of service was bad conduct. His DD Form 214 further shows his separation code was "JJD" (as a result of a court-martial); his RE code was "RE-4"; and his narrative reason for separation was "as a result of court-martial." 15. 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. 16. The applicant provides: a. Extensive medical records from the VA that show diagnoses of generalized anxiety disorder (as of 18 September 2017); panic disorder without agoraphobia with moderate panic attacks; schizoaffective disorder, depressive type (as of 13 November 2018); Type 2 diabetes mellitus; noncompliance with medication regimen; morbid obesity, steatosis of liver; neuropathy; pain of left shoulder joint, left ankle, left knee, bilateral hip joint; benign essential hypertension; arthralgia; myalgia; and remote history of a right inguinal hernia repair and right knee hyperextension. The periods of treatment cover 20 March 2002 through 19 November 2019. The most recent treatment record, dated 19 November 2019, notes the applicant had conduct problems while in the military stationed at Fort Knox and in Germany, related to his use of alcohol and drugs. These records do not contain a diagnosis of PTSD. b. A statement of support from his wife, who notes that she has known him for more than 37 years. Prior to his departure to Germany, he was warm and caring, a perfect gentleman. After about a year, she noticed he had changed; he lost his cheerful tone and became distant. After they married, she noticed he would go through periods of depression and withdrawal. There have been periods where he made friends and seemed to be doing well but these periods would be followed by periods of withdrawal, isolation and mood swings that drove family and friends away. His mood swings have caused him to be unable to cultivate relationships and perform daily activities. He has many nights in which he is unable to fall asleep and when he does, even with medication, he only sleeps between 2-4 hours and will be awake for the rest of the night. She has finally convinced him to receive treatment. His depression, mood swings, nightmares, panic attacks and neglect of personal appearance and hygiene has been a work in progress. He has difficulty dealing with and adapting to stressful situations resulting in irritability and outburst of anger. He has made the statement on several different occasions that he wonders if the family would be better off if he wasn't here. She has tried to assure him that he is truly needed and that they will get through this; however, when he has nightmares and becomes so sad and depressed about the accident that killed his friend, which was not his fault, it becomes difficult especially since she sees daily how the medications are not working the way she thought they would. It truly breaks her heart to see a once vibrant, loving and outgoing husband and father become an introvert and unable to function as he did many years ago. c. A third party letter of support from an individual who describes the applicant as a man of impeccable character. He is pleasant and easy to get along with and works well with others. The applicant is a leader in all aspects of life and has a strong interest in directing the lives of young people. He communicates effectively and makes good decisions. He is confident in who he is and his capabilities. Therefore, he is extremely successful in human relations. He has been a role model and works endlessly to achieve any challenge presented to him. 17. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation and the VA electronic medical record (JLV). The ARBA Medical Advisor made the following findings and recommendations: a. There is no evidence the applicant had a mental health or other medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. b. His VA medical problem list shows him to have been diagnosed with generalized anxiety disorder and “panic disorder without agoraphobia with moderate panic attacks.” Form a clinic note dated 19 November 2019: “Veteran has indicated that, since March 2017, he has had nightmares, night terrors, anxiety, worry, and panic attacks since he was triggered about memories of learning his friend died in the military due to an accident. Veteran reported that he had these symptoms in the past, however, he was able to control them.” c. Based on the information currently available and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency medical advisor his mental health conditions are partially mitigating, mitigating the three acts of disobedience associated with the special court martial. Conversely, his mental health conditions cannot mitigate the striking of a noncommissioned officer. d. In consideration of fairness and compassion coupled with the intent of liberal consideration guidance, the Board could consider a discharge upgrade based on the harshness of the original discharge characterization relative to the infractions. 18. The Board should consider the applicant's statement and provided evidence for consideration of granting relief in accordance with the published equity, injustice, and clemency determination guidance. BOARD DISCUSSION: 1. 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 behavioral health claim and the review and conclusions of the ARBA Medical Advisor. 2. A court-martial convening authority may not execute a sentence to a BCD without the conviction and sentence first having been affirmed by the U.S. Army Court of Military Review. This is why the ACTION section of the applicant's court-martial order states all of his sentence but the BCD was to be executed. It does not mean that the intent of the court-martial convening authority was to set aside that portion of the sentence. The BCD simply could not yet be executed at the time the order was published. By the time he had served his sentence to confinement, the review would have been completed and the BCD could then be executed. Although documentation of the required review of his conviction and sentence is not available, the Board found insufficient evidence to support a conclusion that the applicant was discharged without his case having undergone the required post-trial review. 3. The Board concurred with the conclusion of the medical advising official regarding the misconduct for which he was convicted by court-martial being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was too harsh and should be upgraded to under other than honorable conditions. The Board further determined that the reason and authority for his separation and the associated codes are not in error or unjust. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under other than honorable conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 601–210 (Active and Reserve Components Enlistment Program) provides that an RE code is not upgraded unless it was administratively incorrect when originally issued. a. "RE–1" applies to personnel who have completed their obligated term of active service and are considered qualified to reenter the U.S. Army if all other criteria are met. b. "RE–3" applies to personnel who are not considered fully qualified for reentry or continuous service at time of separation, but whose disqualification is waivable. They are ineligible unless a waiver is granted. c. "RE–4" applies to personnel separated from last period of active duty service with a nonwaivable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of Service retirement) with 18 or more years AFS. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of Army Regulation 635-200, Chapters 9, 13, and 14. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code of "JJD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, by sentence of a trial by court-martial. The SPD/RE Code Cross Reference Table included in the regulation establishes "RE-4" as the proper code to assign members separated with this SPD code. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. A Soldier will be given a bad conduct discharge only pursuant to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 6. 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. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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.) AR20200002690 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1