ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  29 March 2019

	DOCKET NUMBER:  AR20160014922


APPLICANT REQUESTS:  The applicant request his Bad Conduct discharge be 
upgraded to general under honorable conditions or honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for Review of Discharge)
*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214

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 that at the time of his incident, he was under extreme stress.  
He was attached to a tanker unit, the Gulf War was in full swing, and he stayed in 
combat mode.  He also states that he was robbed at gun point and fired back in self-
defense.  He felt he had PTSD and was failed by the government.

3.  His records show that the applicant entered the Army on 27 July 1992.

4.  On 27 April 1994, the applicant was found guilty by a general court-martial for 
violations for the Uniform Code of Military Justice.  The charges span multiple 
infractions that reads as the following:
*	Broke restriction
*	Wrongful use of marijuana
*	Wrongful discharge of a firearm
*	Wrongfully carried a concealed weapon

5.  On 28 June 1994, the convening authority approved the sentence of forfeiture of 
$400.00 per month for twelve months, confinement for twelve months, and a bad 
conduct discharge.
6.  On 31 July 1995, the applicant was discharged with a bad conduct discharge as a 
result of his court-martial conviction.  He completed 1 year, 9 months and 11 days of net 
active service.  His DD Form 214 shows he was retained on service 216 days at the 
convenience of the Government.  Additionally, he was awarded the National Defense 
Service Medal and the Army Service Ribbon.
7.  Army Regulation 635-200 (Personnel Separations) provides a Soldier would 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 the affirmed 
sentence ordered duly executed.
8.  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.

9.  A medical advisory opinion from the Army Review Board’s Agency Clinical 
Psychologist was provided on 28 January 2019 and stated based on the available 
evidence that there is insufficient evidence to support the applicant’s misconduct was 
due to PTSD.  

10.  The applicant states that he was put in a very dangerous situation and he reacted 
according to training.  He feels that he gave his all but has been abandoned by the 
government.  His records show His record shows that he was found guilty by a general 
court-martial for violations for the Uniform Code of Military Justice and sentenced to a 
forfeiture of $400.00 per month for twelve months, confinement for twelve months, and 
a bad conduct discharge.
11.  At the time of the applicant's discharge, PTSD was largely unrecognized by the 
medical community and DOD.  However, both the medical community and DOD now 
have a more thorough understanding of PTSD and its potential to serve as a causative 
factor in a Soldier's misconduct when the condition is not diagnosed and treated in a 
timely fashion. Soldiers who suffered from PTSD and were separated solely for 
misconduct subsequent to a traumatic event warrant careful consideration for the 
possible re-characterization of their overall service even if the sexual assault or sexual 
harassment was unreported, or the mental health condition was not diagnosed until 
years later.
12.  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 mental health conditions, 
including PTSD.   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. 
 13.  Army Regulation 635-200, Chapter 10 is a voluntary discharge request in-lieu of 
trial by court martial.  In reaching its determination, the Board can consider the 
applicant's petition, his service record, and his statements in light of the published 
guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions, medical concerns, and 
the medical advisory opinion were carefully considered.  The Board applied Department 
of Defense standards of liberal consideration to the complete evidentiary record and did 
not find any evidence of error, injustice, or inequity.  The Board agreed that the 
applicant's discharge characterization was warranted as a result of the misconduct.  
There was no evidence provided that shows he was diagnosed with a medical condition 
during his period of service that may have contributed to his misconduct.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: X	:X	:X	DENY APPLICATION


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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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 15–185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records (ABCMR).  
Paragraph 2-9 states 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.

3.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic 
authority for the separation of enlisted personnel.

     a.  Chapter 3, section IV, established policy and procedures for separating members 
with a dishonorable or bad conduct discharge and provided that a Soldier would 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 the affirmed 
sentence ordered duly executed.

     b.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.  

4.  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.

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.  Standards for review 
should rightly consider the unique nature of these cases and afford each veteran a 
reasonable opportunity for relief even if the sexual assault or sexual harassment was 
unreported, or the mental health condition was not diagnosed until years later.  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.

7.  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.  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.  

     a.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160014922

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