BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005188 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: 9 January 2018 DOCKET NUMBER: AR20160005188 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: 9 January 2018 DOCKET NUMBER: AR20160005188 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). 2. The applicant states, in effect, that: a. He had an honorable period of service before his BCD. Every day he regrets his actions but he wonders if he should have to for the remainder of his life. Since departing the service, he has become a good and respected husband, father, and citizen. His evidence shows he is a man of good character, who has moved on from his mistakes and asks for the Board's compassion. b. He would like the Board to consider that the Department of Veterans Affairs (VA) granted him service-connected disability for post-traumatic stress disorder (PTSD) with major depression. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 19 May 2003 * VA Summary of Benefits letter, dated 31 October 2012 * VA Form 21-4138 (Statement in Support of Claim), dated 7 November 2016, with one-page attachment * approximately 30 pages of supporting documentation 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 25 August 1995. After completing his initial entry training, he was awarded military occupational specialty 19K (Armor Crewman). The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4. 3. General Court-Martial Order Number 16, issued by Headquarters, Fort Stewart, GA on 3 July 2001, shows the applicant was convicted, on 30 March 2001, of violating Article 134 of the Uniform Code of Military Justice (UCMJ). Specifically, he was convicted of wrongfully secreting certain mail matter, to wit: letters addressed to Soldiers assigned to his unit, which said mail of the unit was then in the unit mail box, before said mail was delivered to the addresses, on or about 18 January 2001. a. His sentence included reduction to the rank/grade of private/E-1, confinement for one year, and separation from service with a BCD. b. His sentence was approved and, except for that portion of the sentence extending to a BCD, was ordered to be executed. 4. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for review. The U.S. Army Court of Criminal Appeals affirmed the approved findings and the sentence. The U.S. Court of Appeals for the Armed Forces denied his petition for review. 5. General Court-Martial Order Number 185 issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, on 6 March 2003, shows his sentence was affirmed and the BCD was ordered to be executed. 6. The applicant was discharged on 19 May 2003, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial. The DD Form 214 he was issued confirms his character of service was "Bad Conduct." Additionally, it notes his continuous honorable active service during the period 25 August 1995 through 2 April 1998. 7. The applicant's record is void of evidence that shows he was diagnosed with PTSD or any other medical or mental health condition(s) during his period of active duty service. 8. The applicant provides: a. A VA Summary of Benefits letter, dated 31 October 2012, which shows the VA awarded him compensation and a service-connected disability rating of 100% (percent). This letter does not indicate the reasons or medical conditions that led to this rating. b. VA Form 21-4138, dated 7 November 2016, with a one-page attachment, in which the applicant states he recently remembered he was diagnosed with PTSD with major depression and wanted it to be considered by this Board. The one-page attachment, presumed to be a VA document, titled, "Corporate Award and Rating Data" lists PTSD under the diagnosis column. c. Approximately 30 pages of documents that document his behavior while incarcerated at Fort Sill, OK; military certificates of achievement; his Enlisted Record Brief; and numerous civilian training certificates. 9. In the processing of this case, an advisory opinion was obtained on 18 July 2017 from an Army Review Boards Agency (ARBA) Medical Advisor/Clinical Psychologist, who opined: a. Documentation reviewed included the applicant's ABCMR application, his military personnel records on file, and the limited review of the VA electronic medical record (Joint Legacy Viewer (JLV)). b. The JLV shows a 100% service-connected disability rating from the VA. The breakdown by condition and onset is unknown. VA diagnoses include PTSD, sleep apnea, and recurrent major depressive disorder. c. Based on a review of the applicant's available medical records, they do not at the time of his discharge reasonably support him having had a boardable medical condition for that period. His misconduct is not the kind that PTSD mitigates. d. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. e. A review of the available documentation did not discover evidence of mental health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was not discovered. 10. A copy of the advisory opinion was forwarded to the applicant on or about 25 July 2017, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. 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. It is not an investigative body. 2. Army Regulation 635-200 set for the basic authority for the separation of enlisted personal. 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. Paragraph 3-11 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. 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 the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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 contends he had an honorable period of service and he has been a respected citizen, father, husband, and community leader since his discharge. He regrets his actions; however, they should not be held against him forever. He further contends his PTSD should be taken into consideration for a change to his characterization of service. 2. The applicant was discharged with a BCD on 19 May 2003, pursuant to an approved sentence of a general court-martial that was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 3. While he may have a diagnosis of PTSD from the VA, an ARBA Medical Advisor/Clinical Psychologist opined that, based on the information available for review, there is no evidence that indicates he had any mitigating medical or mental health conditions during his period of military service (including PTSD) that would support a change to his characterization of service. 4. Any redress by this Board of the finality of a court-martial conviction is prohibited by law, meaning the Board does not have the authority to expunge the general 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005188 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005188 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2