ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 March 2019 DOCKET NUMBER: AR20160008555 APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * letters of support/character reference letters FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 an upgrade is appropriate because: a. He grew up with his father, a decorated Vietnam War Veteran and all he wanted was to join the military and be a Soldier. He enlisted and was on his way after his high school graduation. After basic/advanced training, he was stationed at Fort Hood and dug himself in the military way of life. His mind set was the military is going to be his life. After a few years, he received orders for Korea. Not too long after the situation in Iraq escalated and his unit, the 1st Cavalry was sent to Iraq. He served during Operation Desert Storm with honor. He was in a front line unit that took casualties and seeing his friend and fellow Soldier die in the line of duty, believing he could have been possibly next, somehow changed him. After coming back to Fort Hood, he was introduced to dangerous and addicting drugs. He soon failed a drug test along with other drug-related instances which led to his court martial and bad conduct discharge. b. He understands time change as a population, as a country we learn and understand more today than we did in 1991. Had this happened now with the knowledge of substance abuse and behavioral health among troops, after a deployment, Soldiers would get help before a court-martial. He received none; just a dismissal and he was set out into the world with a problem that was born while in military service. c. He is asking for this second chance at life with an upgrade to honorable service. After serving time in confinement, he was released to civilian life and without getting help for the real problem, which was dealing with the death he witnessed of his friend and the drugs which were a result of the pain he endured, he continued his downfall in life. He was soon arrested for drug related matters, but through the help of a judge and his family, he was committed to a drug rehabilitation center called The Discovery House in Marlboro, NJ. He remained clean at the facility and dealt with his life issues for about a year. After leaving rehab, he continued living clean and sober. He volunteered and spoke to children as well as adults about the dangers of drugs and alcohol at many different facilities for many years. He mentored children at camps, in schools and in a way felt that this was also his way of serving our country honorably. He started a job washing dishes at a major chain restaurant and 5 years later, he was promoted to General Manager, leading over 60 employees while he continued to do his work to inform about drugs. d. He knows it was the drugs that led to his failures in military life. He believes that if he had received some help instead of just a court-martial, he could have excelled in the military and lived out his dream. He is asking to change his discharge so he can try to erase what he thinks was an excessive punishment and continue to get the help he needs and to utilize military facilities. He asks the Board to consider this plea to raise his discharge, conduct, and character in life after the drug problem has been honorable. 3. The applicant provides four statements of support/character reference letters attesting to his character. The authors opine: * he is active in the church and excels in this role * he is a model citizen * he has started businesses with strangers * he helps at risk children and is committed to his community * he is a true asset to an organization 4. Review of the applicant's service records show: a. He enlisted in the Regular Army on 25 August 1989. He served in Saudi Arabia from 11 October 1990 to on or about 22 April 1991. b. Court-martial charges were preferred against him for the wrongful use and wrongful distribution of marijuana and/or cocaine. c. On 6 December 1991, following consultation with counsel, he requested discharge in lieu of trial by court-martial (chapter 10). d. On 29 January 1992, the Commanding General, 1st Cavalry Division disapproved his request and ordered the continued processing of a court-martial. e. On 4 May 1992, he was tried and convicted by a general court-martial of one specification of wrongfully distributing marijuana on 29 August 1991 and one specification of wrongfully using marijuana and cocaine between 7 December 1991 and 7 January 1992. f. The court sentenced him to a reduction to private/E-1, forfeiture of all pay and allowances, confinement for 9 months, and a bad conduct discharge. g. On 6 October 1992, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. h. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. i. General Court-Martial Order Number 9 issued by the Headquarters, U.S. army Garrison, Fort Dix, NJ on 5 April 1993, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. j. He was discharged on 23 April 1993. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3. He completed 3 years and 19 days of active military service with lost time from 4 May to 13 December 1992. His service was characterized as bad conduct and he was assigned separation code JJD. His DD Form 214 also shows he was awarded or authorized the: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Grenade Bar * Marksman Marksmanship Qualification Badge with Machine Gun Bar * Kuwait Liberation Medal 5. An advisory opinion was received from the Army Review Boards Agency psychologist on 12 December 2018. a. The psychologist referenced the Diagnostic and Statistical Manual of Mental Disorders-5th Edition; AR 40-501 (Standards of Medical Fitness), dated 4 August 2011; AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 September 2011; Memorandum, Secretary of Defense, dated 3 September 2014, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder (PTSD) and Army Directive 2014-28, Requests to Upgrade Discharge by Veterans Claiming PTSD, dated 3 November 2014. b. The psychologist opined: (1) Review of the Department of Veterans Affairs (VA) medical record indicates the applicant has had no contact with the VA. (2) The military personnel records are void of any information regarding the applicant's behavioral health. (3) The applicant did not provide any medical records or other documents to support the existence of a behavioral health condition. (4) Based on the available information there is insufficient evidence the applicant met criteria for PTSD or another boardable behavioral health condition during his period of service. Subsequently, there is insufficient information to determine if a behavioral health condition was mitigating. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that relief was warranted based upon the time passed and how the former service member demonstrated he has grown as a citizen from what happened. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. 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 Army Board for Correction of Military Records (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 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. c. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. 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 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. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. Army Regulation 635-5-1 (Separation Program Designator Codes) states SPD codes are three-character alphabetic combinations, which identify reasons for and types of separation from active duty. SPD code JJD is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20160008555 2 1