IN THE CASE OF: BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160004178 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: 19 October 2017 DOCKET NUMBER: AR20160004178 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: 19 October 2017 DOCKET NUMBER: AR20160004178 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 to a general, under honorable conditions discharge. He also requests personal appearance before the Board. 2. The applicant states he was raised in a dysfunctional family and he had a speech impediment. He also states that he was beaten and misused his entire life by his father and other family members. a. He states that he was 16 years of age, diagnosed with borderline Down's Syndrome, and enrolled in special education with a seventh grade level of education when his father signed for him to enter the U.S. Army. At the time, he did not know what was going on. b. He acknowledges that he made mistakes and that he was court-martialed. He apologizes for his misconduct during his military service and adds that he did not know any better. The Judge Advocate General officer asked him, "Did I need incarceration?" He states that he thought it meant, "Did I need to be retrained?", he answered "Yes", and that "yes" answer haunts him to this day. However, he takes full responsibility for his actions and decisions. c. He states that, if he came from a better family, he could have learned to make better decisions. He adds that he would have been a credit to the military and his country. He notes that his father and seven of his nine siblings all did well in the military and they received honorable discharges. d. He refers to the medical records he provides and states they show his low intelligence quotient (IQ) of 25 and that he has Down's Syndrome (retardation). He states that he should never have been allowed to enter military service with such a disability. e. He is receiving disability benefits, living in a senior citizen residence, and seeking help for his mental health condition. An upgrade of his discharge will assist him in obtaining veteran's benefits from the Department of Veterans Affairs (VA). He states that he has bipolar disorder and manic depressive disorder and the VA Medical Center (VAMC) in Albany, NY, has excellent services for these issues. He adds that he wants to change his negative behavior into a positive force in his life. 3. The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and two self-authored statements (summarized above). He also provides his civilian medical records. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel, an Albany VAMC representative, requests an upgrade of the applicant's bad conduct discharge. 2. Counsel defers to the applicant. 3. Counsel provides no documentary evidence in support of the application. 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 U.S. Army Reserve on 22 December 1978 for a period of 6 years. At the time he was 19 years of age. On 26 December 1978, he further enlisted in the Regular Army for a period of 4 years. a. Upon completion of training he was awarded military occupational specialty (MOS) 11B (Infantryman). b. On 18 April 1979, he was assigned to the 2nd Infantry Division in Korea. c. He was advanced to private/pay grade E-2 on 26 June 1979. 3. He received nonjudicial punishment (NJP) on eight (8) occasions, as follows: * on 20 February 1979, for failing to go to his appointed place of duty at the time prescribed * on 26 March 1979, for sleeping on duty while posted as a sentinel * on 3 April 1979, for failing to go to his appointed place of duty at the time prescribed * on 9 June 1979, for – * failing to go at the time prescribed to his appointed place of duty (two specifications) * violating a lawful general regulation by not having an authorized pass * on 12 July 1979, for – * breaking restriction * forging a signature of a commissioned officer on a liberty pass * escaping from lawful custody of the Provost Marshall's Office * on 28 September 1979, for – * going from his appointed place of duty without authorization * wrongfully using, with intent to deceive, a normal off duty pass * breaking restriction * on 21 February 1980, for failing to go at the time prescribed to his appointed place of duty * on 5 March 1980, for breaking restriction 4. Headquarters, 2nd Brigade, 2nd Infantry Division, Summary Court-Martial (SCM) Order Number 32, dated 9 October 1979, shows the applicant was tried by SCM on 4 October 1979. He was found guilty of violation of the Uniform Code of Military Justice (UCMJ): * Article 86 (Absence without leave), for failing to go at the time prescribed to his appointed place of duty * Article 92 (Failure to obey order or regulation), for failing to have an authorized overnight pass in his possession on 18 August 1979 * Article 134 (General Article), for, on 18 August 1979, wrongfully having in his possession marijuana a. He was sentenced to forfeit $250.00 pay per month for one (1) month and restriction to the company area for 45 days. b. On 9 October 1979, the SCM Convening Authority approved the sentence and ordered it executed. 5. Headquarters, 2nd Infantry Division, Special Court-Martial (SPCM) Order Number 58, dated 30 June 1980, shows the applicant was tried by SPCM. He was found guilty of violation of the UCMJ: * Article 134, for soliciting another to dispose of military property * Article 95 (Resistance, flight, breach of arrest, and escape), for escape from lawful custody on 6 May 1980 * Article 86, for being absent without leave from 6 May 1980 to 10 May 1980 * Article 121 (Larceny and wrongful possession), for larceny of property of a value of more than $100 on 28 April 1980 a. He was sentenced to forfeit $298.00 pay per month for five (5) months, confinement at hard labor for five (5) months, and a bad conduct discharge. b. On 30 June 1980, the SPCM Convening Authority approved only so much of the sentence as provided for forfeiture of $298.00 pay per month for five (5) months, confinement at hard labor for four (4) months, and a bad conduct discharge. He directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review (CMR). 6. U.S. Army CMR, Memorandum Opinion, dated 30 December 1980, shows the applicant assigned error to improvidence of his pleas due to the military judge's failure to assure that the applicant understood the meaning and effect of each of the cancellation clauses in his pretrial agreement. The CMR reviewed the matter of the five cancellation provisions, noted the applicant's answers to the military judge's questions, and found the cancellation provisions were straight forward and susceptible only to one interpretation. Accordingly, the CMR found the approved findings of guilty and the sentence pertaining to the applicant's case correct in law and fact and affirmed the findings of guilty and the sentence. 7. On 16 January 1981, the applicant acknowledged receipt of the decision of the U.S. Army CMR. 8. United States Court of Military Appeals, Order Denying Petition, shows the applicant's Petition for Grant of Review of the decision was considered by the Court on 13 April 1981 and denied. 9. Headquarters, U.S. Army Training Center, Fort Dix, NJ, SPCM Order Number 65, dated 8 May 1981, confirmed the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered duly executed. 10. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated on 4 June 1981 with a bad conduct discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial, other. He had completed 1 year, 10 months, and 2 days of net active service this period and he had 154 days of time lost. 11. On 14 February 1997, the Army Discharge Review Board (ADRB) considered the applicant's request for upgrade of his discharge. The ADRB determined that the reason for his discharge and the character of his service were both proper and equitable. The ADRB denied the relief requested by the applicant. 12. In support of his application the applicant provides copies of his civilian medical records. a. Four Winds Saratoga (Psychiatric), Discharge/Referral Summary, dated 20 January 2003, that shows diagnoses of schizoaffective disorder, antisocial personality disorder, and hypertension. It also shows he is reported to have issues with anger management, paranoia, irritability, mood lability, depression, and confusion. He has a history of assaultive behavior and also polysubstance use (reported to be in remission for 10 years). b. Four Winds Saratoga (Psychiatric)m Discharge/Referral Summary, dated 17 October 2011, that shows diagnoses of bipolar disorder, mixed, with psychotic features. 13. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 21 June 2017. a. The ARBA medical advisory (a psychiatrist) noted that she was asked to determine if the available records reasonably support post-traumatic stress disorder (PTSD), or other boardable behavioral health (BH) conditions, existed at the time of the applicant's military service; did these conditions fail medical retention standards in accordance with (IAW) AR 40-501 (Standards of Medical Fitness) warranting separation through medical channels; is/are the condition(s) a mitigating factor in the misconduct that resulted in the applicant's discharge; and any additional information deemed appropriate. b. The opinion was based on the information/records provided by the ABCMR and the applicant, and VA records available through the Joint Legacy Viewer (JLV). c. The VA medical record indicates that, as a result of his bad conduct discharge, the applicant is only eligible for VA humanitarian services. d. The medical advisor provided a summary of her review of the applicant's military medical records. The applicant had no contacts with BH during his military service. There is no documentation of any BH symptoms or diagnoses. There is no indication that he failed to meet retention standards IAW AR 40-501. e. She provided a summary of her review of the applicant's military personnel records. She noted he successfully completed 10 years of formal education and his Armed Services Vocational Aptitude Battery (ASVAB) scores fall within normal range. He had the following charges as a juvenile: petty larceny, age 15, dismissed; criminal possession of a controlled substance, age 16, dismissed; and possession of stolen property, age 18, dismissed. f. She noted that the medical documentation the applicant submitted indicates that his IQ is in the average range. This fact is supported by his ASVAB General Technical (GT) Score of 92, which falls within the normal range. She added, although the GT test is not an IQ test, the GT score can be used as a rough indicator of intelligence. g. The ARBA medical advisor concluded there is no evidence the applicant suffered from any BH condition while on active duty. There is also no indication that he failed to meet military medical retention standards IAW AR 40-501. h. The ARBA medical advisor found that the applicant's military medical records do not support PTSD or another boardable BH diagnosis at the time of discharge. His military medical records indicate that he met medical retention standards IAW AR 40-501 and separation through military medical channels was not indicated. The applicant did not have a mitigating BH condition at the time of his misconduct. There is no evidence in either the applicant-submitted medical documentation or in his military records which support the applicant's statement that he has "borderline Down's Syndrome." 14. On 26 June 2017, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal. 15. The applicant provided his response in a letter, dated 3 July 2017. a. He stated that he is no longer the person he was at 16 years of age. He helps homeless veterans and advocates for those with addictions. He expressed his desire to prove his love and loyalty to military service and his country. b. He restated that he could have been a better Soldier if he had been better educated. He acknowledges that he had 10 years of formal education, but asserts he was in special education during that time that was for students with Down's Syndrome. He also had to take speech class because he stuttered. c. Regarding the charges against him as a juvenile, he states they were all dismissed without prejudice, which proves he was in a dysfunctional family. He offers information in mitigation of the charges of petty larceny and possession of marijuana. d. He states that he repeatedly asked his superiors in the Army to allow him to speak with a psychiatrist for his mental illnesses, but he was denied. He asserts that his military service records should support a PTSD boardable BH condition because he served on the demilitarized zone in Korea for periods of time involving reconnaissance missions and ambushes. He adds that, as a veteran, he was selected to participate in PTSD testing at the Albany Veterans Coalition. e. He concludes by thanking those involved in supporting his request for upgrade of his discharge and also the Board for its consideration. He requests leniency from the Board. REFERENCES: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 prescribes the policies and procedures for separating members with a bad conduct discharge. It stipulates that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Chapter 3, 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. c. Chapter 3, 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. 2. AR 15-185 (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. 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. b. The regulation also states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. 3. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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. Title 38, U.S. Code (Veterans' Benefits) governs the VA and prescribes the rules and regulations which are necessary or appropriate to carry out the laws administered by the VA. 5. 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 the 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. 6. 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 (TBI); 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 on 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 contends that his bad conduct discharge should be upgraded because: * he was young and lacking in mental capacity to serve in the military * he had a boardable BH condition or conditions * he desires to obtain VA medical benefits 2. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 3. Records show the applicant entered active duty when he was 19 years of age. The evidence of record is at odds with his contention that his father signed him up for the U.S. Army at age 16. a. He successfully completed advanced individual training, was awarded MOS 11B, and advanced to PV2 (E-2) within 6 months of active service. b. The evidence of record argues against the applicant's contention that he was immature during the period of service that is under review. c. In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 4. The applicant's contentions regarding his limited mental capacity and BH conditions were carefully considered. a. The test scores in his military personnel records and the fact that he completed advanced individual training argue against his contention. b. The ARBA medical advisor found no evidence that the applicant suffered from any BH condition(s) while on active duty. 5. The applicant's trial by SPCM was warranted by the gravity of the offenses for which he was charged. The evidence of record shows conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the appellate review. 6. 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. 7. The applicant is advised that the administration and granting of veterans benefits does not fall under the purview of the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004178 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004178 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2