ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 22 January 2019 DOCKET NUMBER: AR20160012381 APPLICANT REQUESTS: reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20140001661 on 28 August 2014. Specifically, he requests upgrade of his bad-conduct discharge to general, under honorable conditions. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Small Wars Journal, A Tribute to Captain Travis Patriquin, 8 December 2010 * Army health records * Veterans Affairs (VA) health records FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140001661 on 28 August 2014. 2. The applicant states: * prior to his General Court-Martial he had a very good military record * he was awarded a coin for being the youngest person to join at the time he joined the military * he was in basic training when he turned 17 years old * he received an [Army] Good Conduct Medal (AGCM) * he was in Ramadi, Iraq on 6 December 2006 * he was part of a detachment of eleven Soldiers sent to up-armor all vehicles * his discharge does not reflect his tour in Iraq, but his medical documents and in service treatment records will show he was in theater * the article written by Chad M. Pilllai tells of the events on 6 December 2006 * six individuals had just left their camp and had thanked and congratulated his detachment for the work on putting the armor on their vehicle * they could see the individuals drive out of the compound * about a minute after the vehicle left the gate the applicant and his detachment heard and saw a loud explosion * the applicant was hit by a small piece of shrapnel from the explosion * all of the vehicles in the group had been destroyed * it was a helpless moment after having been told what a good job the applicant and his detachment had done on their vehicles * not one of the vehicles was protected from the explosion * all of the Soldiers were dead * the applicant will never forget the image of the explosion and the piece of shrapnel will always remind him of how dangerous and deadly Iraq was * after this incident the applicant cannot be in a group of people * any type of alarm he hears takes him back to this event * he consistently has panic attacks whenever he hears such sound and feels he is back in Ramadi * his troubles in the military did not start until he returned from Iraq * he had problems sleeping and lost motivation for life * he did not have the same aspirations as before * life was something that could be destroyed in an instant * he did not realize the impact of witnessing this would change his outlook on life * he believes if he had been given mental health treatment in the military he could have overcome the mental state he was in * he couldn't sleep at night and just wanted to flee from the military * he did not have the same sense of dedication/hope to keep a successful career * witnessing this event made him a different person and he lost hope that he would live long enough to have a career in the military * he believes his actions were a cry for help but no one listened or offered him another way to deal with his mental issues * he is seeking an upgrade to his discharge so he may continue to get medical treatment and try to learn to live with this event * he does not want it to completely destroy his life as it has done up to now 3. The applicant entered the regular Army on 5 January 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he had a period of honorable service from 5 January 2005 through 15 December 2008. He received an AGCM for this period of honorable service. 4. Although his records are void of evidence of his participation in the Iraq war, he provides health records from the theater facility for treatment for an open wound to his leg. He also provides health records from his return from Iraq showing he sought treatment for insomnia. 5. The applicant was tried by General Court-Martial, as indicated in General Court- Martial Order Number 10, published by Headquarters, XVIII Airborne Corps and Fort Bragg. He pled and was found guilty of failing to go to his appointed place of duty, disobeying a lawful command from a commissioned officer, assaulting a commissioned officer, disobeying an order from a noncommissioned officer, assaulting two noncommissioned officers, wrongfully using marijuana, unlawfully entering a barracks room, and escaping from confinement. Part of his sentence was to receive a bad- conduct discharge. 6. The appeals court reversed the finding of guilty to escaping from confinement and dismissed that charge; however, the remaining findings of guilty were affirmed and the bad-conduct discharge was executed. The applicant was discharged on 12 May 2011. 7. The applicant provides VA progress notes, which indicate he has sought treatment for thoughts of suicide, trouble sleeping, and depression. The VA notes indicate the applicant has guilty feelings for being alive when the Soldiers in the vehicle died. They also indicate the applicant reported post-traumatic stress disorder (PTSD) symptoms including anxiousness, rapid heartbeat, isolation, and difficulty being around people. 8. In the processing of this case, an advisory opinion was obtained on 21 December 2016, from the Army Review Boards Agency Medical Advisor/Psychologist. The advisory official noted and opined: * there is evidence the applicant may have had a behavioral health condition that mitigated some but not all of the offenses which led to his separation * the applicant experienced sleep problems subsequent to serving in Iraq * he was prescribed psychiatric medications for the sleep problems * documentation from the VA indicated a diagnosis of PTSD * this condition related to him being absent without leave, willfully disobeying orders, and using marijuana * the behavioral health issue is not related to failing to go to his assigned place of duty, striking an officer and noncommissioned officer, or entering a barracks room unlawfully * the applicant's traumatic deployment experiences appear to have negatively impacted his mood functioning leading to defiance, aggression, and insubordination * it is possible that this was not recognized and attributed his misconduct to PTSD, which would support a change to the characterization for discharge 9. The applicant was provided a copy of this advisory opinion on 28 December 2016, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 10. The Board should consider the applicant's petition, article regarding the incident on 6 December 2006, health records, and VA progress notes in accordance with guidance from the Secretary of Defense (3 September 2014) and Under Secretary of Defense for Personnel and Readiness (25 August 2017) to Military Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs) when considering requests by veterans for modification of their discharges due in whole, or in part, to mental health conditions, including PTSD and traumatic brain injury. 11. The Board should further consider in accordance with guidance from the Under Secretary of Defense for Personnel and Readiness (25 July 2018) to the DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. In addition, changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 12. 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. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance. Although there is evidence the applicant may have had a behavioral health condition that mitigated some of the offenses which led to his separation, the behavioral health issue is not related to failing to go to his assigned place of duty, striking an officer and noncommissioned officer, or entering a barracks room unlawfully. The Board denies the applicant’s request to upgrade his bad-conduct discharge to general, under honorable conditions. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X x x Deny 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. 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. Army Regulation 635-200 (Personnel Separations- Active Duty Enlisted Administrative Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b states 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. b. Paragraph 3-11 provides that a Soldier 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 executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with tittle 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. 3. 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 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. 4. 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; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 5. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This 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, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. (b) Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160012381 2