ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 March 2019 DOCKET NUMBER: AR20160015013 APPLICANT REQUESTS: an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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: a. He was diagnosed with post-traumatic stress disorder (PTSD) and schizophrenia when he was stationed at Fort Bragg, NC. At the time, his wife decided that after being away so long and whatever else went into her decision, that she did not want him to come home to his beautiful children and home, which he had work so hard for. His wife lost interest in the life of a Soldier’s wife and abandoned him when he was finally due to come home. She withdrew all but $1.78 from his account and he was standing at the bank with Captain X behind him. b. He then went out with a fellow Soldier to blow off some steam and they ended up smoking some marijuana that was laced with cocaine. He then used his friend’s car to go see a female later on and lost his friend’s keys. He did not make it back to post n time and was considered absent without leave. The car was found at a local car wash and there were marijuana seeds in it. He was then tested for drugs and the senior staff sergeants took it upon themselves to use cruel and unusual punishment on him. c. It was ruled at the court-martial that he was mistreated and after spending 4 months in confinement at Camp LeJune, NC, it was found that he had been subjected to mistreatment there. At the court-martial proceedings, he told the general officer that he would gladly and proudly still stand and fight for this beautiful country. Afterward, a sergeant lost his duty position and was transferred for sticking up for him and reporting the truth. The general officer presiding over the court-martial felt a separation would be for the best, as wherever he went he would have a difficult time with his chain of command and fellow Soldiers who would hear about his case. He allowed him to be housed at Fort Bragg, NC, until he received another pay check and then he returned to Texas. d. He is very proud he was a member of the airborne brotherhood and the special forces. He was a top notch Soldier and both of his parents are also veterans of Vietnam and Desert Storm. He would consider it an honor to have his discharge upgraded. He was told the upgrade would be automatic. e. He could benefit from the medical and psychological help the Department of Veterans Affairs (VA) could offer. He received a Social Security Disability from the State due to blepharospasm (involuntary tight closure of the eyelids) and a dystonia (unintentional sustained muscle contractions) of his speech that require Botox injections every 3 months to his eyes and throat area. He is on medication for his mental health conditions and is considered fully disabled. f. There is speculation he may have gotten a chemical agent in his eye somewhere on duty or during a jump. He fights PTSD, anxiety, and schizophrenia daily and struggles more each year. The VA resources would be a great help in his struggle. He respectfully asks to have his discharge upgraded to he can be validated as a true veteran. He plans to live near his mother at Fort Gordon, GA, and where he grew up at Fort Hood, TX. g. He goes to the University of Iowa hospital to get his treatment and the VA is nearby. The Army Corps of Engineers came up with the treatments and medications for his afflictions and he raises therapy dogs. He would love to be part of being around and helping other veterans. It will be easier to get his medication that he needs due to the State of Iowa not wanting him to break certain regulations and to treat his afflictions properly. He would welcome all the professional care he can get as proper medical and psychological care are of great importance. h. He does not have any available records as his wife threw away all of his belongings, but his service records can be obtained at the National Personnel Records Center. He would also love to obtain a duplicate award of his jump wings at some point. 3. The applicant enlisted in the Regular Army on 1 September 1999. 4. Headquarters, U.S. Army Infantry Center Permanent Orders 030-377, dated 30 January 2000, and filed in his Army service records, awarded him the Parachutist Badge for the successful completion of airborne training. 5. He was arraigned and tried before a general court-martial on 12 September 2000 at Fort Bragg, NC, where he was charged with and found guilty of: * wrongful appropriation of a vehicle, of a value of over $100.00, the property of Private First Class X , on or about 31 May 2000 * absenting himself without authority from his unit from on or about 31 May 200 until on or about 6 June 2000 * wrongfully using marijuana between on or about 6 May 2000 and on or about 6 June 2000 * wrongfully using cocaine between on or about 3 June 2000 and on or about 6 June 2000 6. He was sentenced to confinement for 4 months, forfeiture of all pay and allowances, and discharge from the service with a bad conduct discharge. There is no evidence of record it was determined during the court-martial, as the applicant claims, or at any other time he was mistreated while in confinement. 7. On 16 November 2001, the sentence to a bad conduct discharge, confinement for 4 months, forfeiture of all pay and allowances, having been finally affirmed, that portion of the sentence pertaining to confinement having been served, and all else having been complied with, the bad conduct discharge would be executed. 8. On 3 April 2002, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct discharge. He completed a total of 2 years, 3 months, and 28 days of net active service this period with lost time from 9 June 2000 through 23 September 2000. His DD Form 214 does not reflect award of the Parachutist Badge. 9. There is no evidence of record he was ever diagnosed with PTSD or schizophrenia, either during or after his period of service. 10. On 22 February 2017, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. The advisory found available documentation did not reveal evidence of mental health considerations that are sufficient to change the character of the discharge in this case. A nexus between the applicant’s misconduct and his mental health was not discovered. A copy of the complete medical advisory opinion has been enclosed with this Record of Proceedings for review and consideration. 11. The applicant was provided a copy of the advisory opinion on 24 February 2017 and given an opportunity to submit comments, but he did not respond. 1. 12. 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. 13. 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, 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. 14. 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 court-martial forum. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 15. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 3, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the characterization received due to the misconduct is not unjust. 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. 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. ADMINISTRATIVE NOTE(S): Headquarters, U.S. Army Infantry Center Permanent Orders 030-377, dated 30 January 2000, awarded the applicant the Parachutist Badge for the successful completion of airborne training. The Parachutist Badge is not listed on his DD Form 214. 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. 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. 3. 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, 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. 4. 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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 1. punishment. 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. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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. Chapter 3, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review was required to be completed and the affirmed sentence ordered duly executed.