BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160001603 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 BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160001603 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. BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160001603 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 bad conduct discharge (BCD) to a general discharge due to his behavioral health (BH) condition of bipolar disorder. 2. The applicant defers statements to his Department of Veterans Affairs (VA) advocate. 3. His VA advocate states they are requesting: a. a change of the applicant’s characterization of service due to his life-long illness of bi-polar disorder, which went undiagnosed by the Army medical treatment facility, which ultimately affected the actions that caused his misconduct; b. in effect, records related to his medical treatment in the Army; and c. and explanation of why the Army was not following the procedures then that are being followed now. (Presumed to mean the procedures regarding BH issues.) 4. The VA advocate states the only time the applicant had a medical evaluation was when he entered the service and his medical records do not reflect bi-polar disorder. 5. The applicant provides: * VA Form 21-4138 (Statement in Support of Claim),dated 14 December 2015 * a letter from Dr. R___ A____ from the Atlanta Behavioral Medicine, Incorporated (Inc.), dated 29 March 2016 * Print-out of an article titled, “Recognizing the Symptoms of Bipolar Disorder” by Dr. K____ M____ * Pamphlet for “Lethal Weapon Prison Ministries”, by Minister [Applicant], Founder and President * a book, titled “1720 East Woodrow Street: The [Applicant's] Story” by the applicant 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 available records do not include any medical records. 3. On 8 August 1975, the applicant enlisted in the Regular Army. After his initial training, he was awarded military occupational specialty (MOS) 75B (Unit Clerk). He served in the Republic of Korea from 23 January 1976 through 18 February 1977. The highest grade the applicant attained was pay grade E-4. 4. On 19 November 1976, the applicant received nonjudicial punishment (NJP) for violating a lawful general regulation by failing to have in his possession an authorized Armed Forces liberty pass while being absent from his unit in an off-duty status overnight. He was found guilty and received a reduction to the rank of private (PVT)/E-2 (suspended for 30 days), a forfeiture of $50 pay for 1 month, 14 days of extra duty, and restriction. 5. Special Court-Martial Order (SPCM) Number 8, issued by Headquarters, 1st Infantry Division, Fort Riley, KS, dated 13 April 1978, shows the applicant was convicted at an SPCM on 16 March 1978 for two specifications of theft by means of force and violence to two individuals; two specifications of communicating a threat to kill to obtain monies from two individuals; and for communicating a threat to kill an individual. His punishment was a reduction to the rank of PVT/E-1, confinement at hard labor for 5 months, a forfeiture of $225.00 pay for 6 months, and a BCD. 6. On 13 April 1978, the sentence was approved by the convening authority. 7. On 17 October 1978, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record they should be approved, such findings of guilty and the sentence were affirmed. 8. On 21 November 1978, the applicant petitioned the Court of Military Review, for a grant of review. 9. On 16 March 1979, Headquarters, U.S. Army Judiciary, Falls Church, VA, denied the applicant's petition for a grant of review. 10. SPCM Order Number 48, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 19 March 1979, shows the applicant’s sentence was affirmed and the sentence was duly executed. The portion of the sentence pertaining to confinement had been served. 11. Orders 99-15, issued by Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 22 May 1979, ordered the applicant to receive a under other than honorable conditions discharge with issuance of DD Form 259A (BCD Certificate). 12. On 25 May 1979, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, as a result of court-martial. His DD Form 214 shows in: * item 9e (Characterization of Service) – “Under Other Than Honorable Conditions” * item 9f (Type of Certificate Issued) – “DD Form 259A" (BCD Certificate) * item 18a (Net Active Service This Period), he completed 3 years, 5 months, and 12 days of creditable active military service * item 21 (Time Lost) – “133 days” 13. On 10 February 1985, the Army Discharge Review Board determined the applicant’s discharge was proper and equitable and voted to deny the applicant’s request for an upgrade of his discharge. 14. The applicant provides a VA Form 21-4138, dated 14 December 2015, from a VA advocate who states: a. There were several conditions that caused the applicant’s under other than honorable conditions discharge. The only time he had a medical evaluation was when he entered the service. His medical records never reflected his bi-polar condition, which was a very serious medical condition, which many people had then and still have today. Bi-polar disorder is not a medical related disorder. b. Bi-polar disorder is a mood disorder thought to be caused by a chemical imbalance in the brain. This results in extreme swings in mood from manic highs to depressive lows. Bi-polar is a life-long condition that can affect both how you feel and how you act. Only a medical professional doctor can diagnose the illness. c. The mental and physical screening part was definitely not done by the military. It is the responsibility of military treatment facility (MTF) commanders to ensure that policies and procedures in the regulation are followed. Whomever oversaw the applicant had a responsibility see there was something wrong or not right with his mental state. The only thing that was done by the military was to send the applicant to jail. That did not fix the problem and the MTF did nothing to find out what the problem was. A mental health screening review would have showed something was not right, but his military file does not state anything about a mental health review. d. His medical disability is a mental issue from childhood up until the time he entered the service. The condition continued to become worse or deteriorated. No evaluation was done when he was incarcerated or during his time in service. 15. The applicant provides a letter from Dr. R.___ A____, Atlanta Behavioral Medicine, Incorporated, dated 29 March 2016, which states the applicant was seen in his office for a psychiatric evaluation on 24 March 2016. Based on the information provided, he has a polysubstance abuse history in remission and he has 12 years of sobriety. The applicant also provided a long history of mood disorders and difficulties sleeping at night. 16. The applicant provides an article titled, “Recognizing the Symptoms of Bipolar Disorder” by Dr. K____ M____, and a book he wrote titled, “1720 East Woodrow Street: The [Applicant's] Story,” which describes growing up in Georgia. 17. On 20 September 2016, an advisory opinion was obtained from the Chief, BH Division, at the Office of the Surgeon General (OTSG). The advisory official noted and opined. a. The applicant asserts he had bipolar disorder when he entered the military, but he never received a BH evaluation. The only BH record submitted or reviewed is a letter dated 29 March 2016, stating he was seen for a psychiatric evaluation on 24 March 2016, for which the applicant was the sole informant. b. No diagnosis was provided; therefore, it is not possible to determine if his discharge was due to a BH condition that should have been considered during his separation processing. 18. The applicant was provided a copy of the advisory opinion for an opportunity to respond. 19. On 26 September 2016, the applicant responded to the advisory opinion by stating: a. He had an abusive lifestyle growing up as the youngest of three boys with a mother who was mentally ill. His home was never stable and dysfunctional, which was traumatizing since birth. His mother was a paranoid schizophrenic mental patient. However, his dad did the best he could to raise three boys while working three jobs. There was no guidance, since no (responsible adult) was ever at home. They all had access to the streets at a young age, which got them in trouble. He never wanted to be a troubled kid, but kids made fun of his mother when she ran out of the house naked. His mother even came to his 2nd grade class naked. She would pull knives and guns on them and threaten to cut their throats. She died in 1997. b. He tried to better himself by joining the military to do good and get an education, but he really should have been getting some type of counseling for the behavior and anger issues that stems from his past before he entered the military. c. He is just asking the Board to have mercy on him. He is very remorseful for the embarrassment he caused the U.S. military and he is sincerely apologetic. He does not have the answers to why he did what he did, except for his mental health issues. He takes full responsibility for his actions for which he has paid his debt. He has changed his life, made better choices and decisions, which has kept him on the right path for over 20 years. In 2004, he dedicated his life to Christ and started a prison ministry in 2010. He works with veterans that have mental health issues that have led them to prison, thoughts of suicide, post-traumatic stress disorder (PTSD), drug addiction, and homelessness. He does not want these people to make the same mistakes he made, so he believes God has blessed him with the ability to overcome his issues and be a blessing to others. He is not perfect, but he is transformed. d. All he wants to do is clear his heart, die as a normal and good citizen, and clear his conscience from this burden he has caused in his life. Whatever decision the Board decides to make, may God continue to bless the Board members and make them prosper. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel: a. 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. b. 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. c. Chapter 11-2 (DD Form 259A (BCD)) states, a member will be given a BCD pursuant only to an approved sentence of a general or SPCM, after completion of the appellate review and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under other than honorable conditions. 2. Army Regulation 635-5 (Separation Documents), dated 15 October 1973, chapter 2-7(n), item 9e (Character of Service), provides the only authorized entries on the DD Form 214, at that time was: * “HONORABLE” * “UNDER HONORABLE CONDITIONS” * “UNDER OTHER THAN HONORABLE CONDITIONS” * “DISHONORABLE” 3. 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. 4. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury; 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. DISCUSSION: 1. The applicant requests an upgrade of his BCD to a general discharge based on a bipolar condition that contributed to his misconduct that led to his discharge. 2. The available evidence shows the applicant received an NJP on 19 November 1976, for failure to obey a lawful regulation. 3. Shortly thereafter, the applicant was convicted of two specifications of theft by means of force and violence to two individuals, two specifications of communicating a threat to kill to obtain monies from two individuals, and communicating a threat to kill an individual. He was found guilty of these offenses, reduced to the rank of PVT/ E-1, confined at hard labor for 5 months, and a BCD. The sentence was approved by the convening authority. 4. The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged. The appellate review was completed and the affirmed sentence was ordered duly executed. His conviction and discharge were effected in accordance with applicable laws and regulations and his rights were protected throughout the court-martial process. He was issued a BCD Certificate in accordance with his sentence. 5. In 1985, the applicant applied to the Army Discharge Review Board for an upgrade of his BCD; however, his request was denied. 6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. 7. The applicant provides a statement through a VA advocate, in which the advocate appears to state the Army failed to diagnosis the applicant’s alleged bipolar disorder while he was in the Army, which contributed to his misconduct. The applicant also provides supporting documentation to include a letter from a doctor at Atlanta Behavioral Medicine, Incorporated, a print-out of regarding recognizing the symptoms of bipolar disorder, and details of his post-service work in the ministries. 8. The applicant’s post service contributions in helping veterans in his community, church, and in assisting people who are incarcerated to better themselves are noted. While his conduct is noteworthy, good post-service conduct by itself is not normally a basis for upgrading a discharge. 9. In an advisory opinion, the Chief, BH Division, OTSG, states that after a review of the applicant’s limited medical records, it was not possible to determine if his discharge was due to a BH condition. 10. The applicant was given an opportunity to respond to the advisory opinion. He responded giving a detailed explanation of his unfortunate upbringing and his mother’s history of a mental condition. However, he does not provide any medical documentation showing he has been diagnosed by a mental health professional with having a behavioral disorder. 11. The applicant's record of service during the period in question did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 12. The applicant’s VA advocate asks why the Army did not follow the procedures that are being followed now concerning BH issues when the applicant was discharged. As knowledge of BH conditions and treatments has progressed, so have the Army's practices and procedures in addressing these conditions. As directed by the Department of Defense, this Board has the authority to upgrade a characterization of service when a preponderance of the evidence shows a Soldier's BH condition mitigates the Soldier's misconduct. This Board can and often does use its authority to apply present knowledge to facts in the past. It should be noted, however, that the Board will only grant relief when a preponderance of the evidence shows there was a condition that mitigated the misconduct in a particular case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001603 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001603 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2