IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150005063 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: 9 August 2016 DOCKET NUMBER: AR20150005063 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: 9 August 2016 DOCKET NUMBER: AR20150005063 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, in effect, post-traumatic stress disorder contributed to his misconduct. a. Upon reviewing the court documents, he realized that there were items that were not brought to the attention of the court. Before any charges were referred to the general court-martial convening authority, his 15th Amendment rights were violated by his command when he was not allowed to cast his vote as a Florida resident. He was treated in a manner that violated the Uniform Code of Military Justice (UCMJ), but this was not brought to the attention of the court. The trial counsel had spoken to him outside of any charges being referred and indicated that if he paid all the money, he would not face any charges. As he was making full restitution, charges were referred. b. His previous DD Forms 214 (Certificate of Release or Discharge from Active Duty) reflect the accurate badges and awards as the U.S. Army Human Resources Command, not the individual Soldier, maintains all documentation. He is being treated by the local Department of Veterans Affairs (VA) hospital for PTSD, depression, and anger issues stemming from his deployments. This was also disclosed to the court as was his having served as casualty assistance officer for three consecutive funeral duties. All this might have led to the misconduct. 3. The applicant provides: * DOD Supplemental Guidance regarding discharges and PTSD * VA PTSD Disability Benefits Questionnaire * 2001 and 2007 separation orders * 2001, 2005, 2006, 2007, and 2011 DD Forms 214 * General Court-Martial Orders Number 8 * VA progress notes * a Record of Proceedings, dated 10 December 2002, responding to a previous application to the Board on a separate issue 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, and 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 served in the Regular Army from 1 September 1993 to 31 January 2001. He held military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 3. He enlisted in the Maryland Army National Guard (MDARNG) on 19 August 2004. His MDARNG service included the following active duty tours: * from 28 November 2004 to 30 September 2005 * from 7 October 2005 to 31 March 2006 * from 18 November 2006 to 28 December 2007; he served in Kuwait/Afghanistan from 12 January 2007 to 18 November 2007 4. He was honorably discharged from the MDARNG on 27 December 2007 to enlist in another component. 5. He enlisted in the Regular Army in the rank/grade of sergeant first class/E-7 on 28 December 2007. He was assigned to the 71st Transportation Battalion, Fort Eustis, VA. 6. On 26 February 2009, he was arraigned on multiple offenses at a general court-martial convened by the Commander, U.S. Army Transportation Center, Fort Eustis. He was convicted of Charge I, two specifications of stealing money; and Charge II, one specification of wrongfully wearing upon his uniform the Special Forces Tab, one specification of wrongfully wearing upon his uniform the Pathfinder Badge, and one specification of wrongfully wearing upon his uniform the Aviation Badge. The court sentenced him to reduction to the lowest enlisted grade of E-1, confinement for 2 years, and a dishonorable discharge. 7. The applicant was confined at Fort Knox. He was examined by a medical official at 1534 hours on 26 February 2009 and was found fit for confinement. No irregularities were found during the examination. 8. On 9 September 2009, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 9. Following his conviction, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. 10. General Court-Martial Order Number 10, issued by Headquarters, U.S. Army Accessions Command, Fort Knox, KY, on 4 February 2011, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's dishonorable discharge sentence executed. 11. The applicant was discharged from the Army on 20 May 2011. His DD Form 214 shows he was discharged in accordance with chapter 3 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) because of court-martial with a dishonorable discharge. This document further shows he completed 1 year, 11 months, and 22 days of net active service during this period and he had 9 years, 4 months, and 14 days of prior active service. He also had 245 days of excess leave as well as lost time from 26 February 2009 to 25 July 2010. 12. He provides his VA progress notes. The Board forwarded these documents to The Office of The Surgeon General (OTSG) for review. OTSG rendered an advisory opinion on 13 July 2016 in the processing of the applicant's case. An OTSG official used as a reference the Diagnostic and Statistical Manual-5th Volume; AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200 , dated 6 September 2011. The OTSG official stated: a. The applicant entered active duty on 1 September 1993 and received an honorable discharge on 31 January 2001, in accordance with AR 635-200, paragraph 19-12 (Qualitative Management Program). He reenlisted on 18 November 2006 and received a dishonorable discharge on 20 May 2011 in accordance with AR 635-200, chapter 3 (Court-Martial). In February 2009, he was convicted of theft and sentenced to two years or confinement, reduction of rank, and a dishonorable discharge b. In March 2015, he requested that the Board grant him a medical discharge due to PTSD. OTSG was asked to determine "if there is a nexus between the information contained in that documentation and the misconduct that resulted in the applicant's discharge." This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). c. Army records indicate that he was diagnosed with and treated for anxiety from March 2009 to June 2010. A VA behavioral health (BH) note dated 12 December 2012 notes a "chronic history of PTSD." The VA Review PTSD Disability Benefits Questionnaire administered in September 2013 confirmed his continued social and occupational impairment and, on 23 April 2015, he was granted service connection for PTSD with a disability rating of 100 percent, effective June 2012. d. Behavioral health records during his service indicate that he was diagnosed with and treated for anxiety. There is no evidence that he met criteria for PTSD at the time of his separation nor is there any indication that a BH condition contributed to the misconduct that resulted in his separation. 13. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He responded on 2 August 2016 and provided a statement from a psychiatrist who states that the applicant has been under his care since December 2012. He is in active treatment with this provider at the Lake Nona VA Outpatient Clinic for his mental health condition of PTSD, for which he is 100-percent service-connected according to his VA rating. He is currently undergoing mental health treatment and will be in need of long-term mental health care for his condition. He is currently treated with various medications. As per policy, a veteran with a total service-connected percentage of 100 percent is considered to be unable to maintain gainful employment; such is the applicant's case. REFERENCES: 1. 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. 2. Army Regulation 635-200 governs the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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. c. Paragraph 3-10 states that 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. DISCUSSION: 1. The applicant was convicted by a general court-martial, which was warranted by the gravity of the offenses charged at the time. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 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. 2. Nothing in his records and/or the medical documents he provides supports his contention that there is a relationship between PTSD and the misconduct that led to his dishonorable discharge. Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. His service did not rise to the level required for an honorable or a general 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) AR20150005063 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005063 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2