ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20160018779 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his under other than honorable conditions discharge (Bad Conduct Discharge Certificate). 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) * Department of Veterans Affairs (VA) Progress Notes * SimonMed Florida Ocoee, Diagnostic Imaging Reports * Letter from VA Primary Care Provider * Letter from Army Review Boards Agency * Previous Report of Proceedings * Previous DD Form 149 (Application for Correction of Military Record) * Previous DD Form 149 * Previous DD Form 293 FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040009583 on 27 July 2005. 2. The applicant states he was young when he joined the military and performed all his duties and training to the best of his abilities. After he arrived at Fort Lewis, he did not know what to expect and fear set in. He injured his back, knees, neck and wrist during landings during airborne training. When in Vietnam, he was afraid and began smoking and using drugs as a coping mechanism. He states his problems began when he was confined in a hot and uncomfortable connex container with slats cut out. 3. The applicant provides: a. VA Progress Notes, dated 25 January 2012. b. SimonMed Florida Ocoee, Diagnostic Imaging Reports, dated 3 August 2012, 13 August 2015, and 8 August 2016. c. Letter from VA Primary Care Provider, dated 17 January 2008, which states that the applicant has been under the care of Dr. X___, MD since 23 November 2007 at the Teal Team of the Ambulatory Medicine Services of the Orlando Veterans Medical Center. He states the applicant has had complaints of low back and knee pains, and that it is as likely or not that the conditions are from performing airborne duties. d. Letter from Army Review Boards Agency, dated 3 February 2006, which states that the applicant was awarded the: * Valorous Unit Award * National Defense Service Medal, * Vietnam Service Medal with one Bronze Service Star, * Republic of Vietnam Campaign Ribbon with Device (1960) * Basic Parachutist Badge e. Previous Report of Proceedings, dated 27 July 2005, which states the applicants request was approved and his records corrected to show award of the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 60 device, the Parachutist Badge, 1 bronze service star to be worn on his Vietnam Service Medal, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. f. Previous DD Form 149, dated 27 October 2004, which states that the applicant requested an upgrade of his characterization of service, and the previously stated awards added to his file; and second DD Form 149, dated 2 April 2012, and a DD Form 293, dated 2 February 2012, with no action taken. 4. A review of the applicant’s records show: a. He enlisted in the Regular Army on 7 August 1969. b. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 10 August 1970 to 21 August 1971. c. The complete facts and circumstances surrounding the applicant’s court martial are not available for the Board to review. His records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 22 February 1972, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations) 635-200, Chapter 11-1b (Dishonorable and Bad Conduct Discharge) with an under other than honorable conditions characterization of service, and he was issued a Bad Conduct Discharge Certificate. His DD Form 214 shows: * He completed 1 year, 11 months and 17 days of active duty service * He had 213 days of lost time from 3 to 6 January 1971, 1 to 5 February 1971, 3 to 6 March 1971, and 7 August 1971 to 22 February 1972. 5. An advisory opinion was received from the Army Review Boards Agency on 8 March 2017 in the processing of this case. The medical advisor/psychologist opined: a. The applicant’s medical records do not at the time of his discharge reasonably support him having had a boardable medical condition for that period. b. The applicant did meet mental health standards in accordance with Chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) that were applicable to the Applicant’s era of service. c. Available case material did support the existence of a mitigating mental health condition at the time of his misconduct. It is unknown if the applicant’s mental-health conditions were considered at the time of his discharge from the Army. Available records did not include an exit medical exam required by Title 10, Section 1177. d. Based on available behavioral-health evidence, the applicant’s current post traumatic stress disorder (PTSD) and other mental problems mitigates at least a portion of his misconduct (drug use, absent without leave (AWOL), and the like), but would not mitigate more serious planned, intentional or violent offenses (viz., drug dealing, violent acts, grand theft) if any exist. e. The applicant did meet medical retention standards in accordance with Chapter 3, Army Regulation (AR) 40-501, and following the provisions set forth in AR 635-40 that were applicable to the Applicant’s era of service. It is unknown if the applicant’s mental-health conditions were considered at the time of his discharge from the Army f. A review of available documentation did discover evidence of a mental-health considerations that bear on the character of the discharge in this case. A nexus between the applicant’s misconduct and his mental health was discovered, though it was impossible to tell if all the misconduct that occurred around the time of the applicant’s discharge can be mitigated because of the poor state of the record regarding his misconduct. 6. The applicant was provided with a copy of this advisory opinion dated 13 Mar 2017 to give him an opportunity to submit a rebuttal. He did not respond. 7. By regulation (AR 635-200), 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 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 documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the medical advisory’s finding that available case material did support the existence of a mitigating mental health condition at the time of his misconduct, the Board concluded that granting clemency by upgrading the characterization of service of the applicant to Under Honorable Conditions (General) was appropriate. 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 Under Honorable Conditions (General). 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 (Personnel Separations) provides for the separation of enlisted personnel: 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 3-7c states 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. Paragraph 3-11 states 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. AR 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, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 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. 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; TBI; 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 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 that misconduct which led to the discharge. 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 (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. 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 based on 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. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20160018779 5 1