ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20160018833 APPLICANT REQUESTS: her bad conduct discharge upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Standard Form 600 (Chronological Record of Medical Care) – Diagnostic and Statistics Manual of Mental Disorders (DSM)-IV Treatment Diagnosis and Multiaxial Assessment and Discussion, dated 20 September 2011 (8 pages) * Mental Health Diagnostic Assessment Consult, Charleston, South Carolina, Department of Veterans Affairs (VA) Medical Center, dated 26 January 2016 (9 pages) * Four character reference letters * Medication Profile, undated FACTS: 1. The applicant feels her discharge characterization is inequitable and unfair because it was based on two incidents in 12 years of active federal service. She states her actions were the result of her medical diagnoses of bipolar disorder and post-traumatic stress disorder (PTSD). It was the prescribed medication that caused her to be in a sedated state of mind on a consistent basis that led to her court martial and ultimate discharge. 2.  The applicant enlisted in the Regular Army on 9 August 2000 in the rank of private first class/pay grade E-3. She completed her training as a supply specialist. She was promoted to the rank of sergeant/pay grade E-5 on 1 July 2004 by Orders 168-22, dated 16 June 2004, issued by the U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia. She reenlisted in the Regular Army on three separate occasions. 3.  On 21 September 2008, she deployed with her unit in support of Operation Iraqi Freedom to Iraq. While deployed she was promoted to the rank and pay grade of staff sergeant (SSG)/E-6 on 1 November 2008 as reflected on her Enlisted Qualification Record. [A copy of her SSG promotion orders is not filed in her personnel record.] She redeployed on or about 20 September 2009 serving for 12 months in Iraq. 4.  While stationed at Headquarters and Headquarters Company, 6th Engineer Battalion at Joint Base Elmendorf-Richardson, Alaska she received a general officer memorandum of reprimand (GOMOR) for driving under the influence of alcohol in Anchorage, Alaska on 23 January 2011. The letter states, "An Anchorage Police Officer conducted a traffic stop on [her] vehicle after he witnessed [her] driving erratically. Upon contact the Officer noticed signs of intoxication including vomit… [She] then failed a series of Standardized Field Sobriety Tests and provided a breath sample resulting in a Breath Alcohol contact (BrAC) of .085 [percent]." 5.  On 28 March 2011, she provided a rebuttal statement to the GOMOR wherein she stated she was arrested for operating her vehicle under the influence of alcohol and prescription medication. She stated she had taken Risperdal and then Lunesta used to treat her insomnia. As the medication had not taken effect, she drove to a local bar and consumed alcohol. She then became ill shortly thereafter and decided to drive home. While driving she continued to vomit and became drowsy weaving in traffic. Shortly thereafter she acknowledges she was stopped by local police. She continues by stating she accepts responsibility for her actions and was aware of the possible adverse effects of the medication and consumption of alcohol. She concludes her statement by stating she meets with an Army Substance Abuse counselor and attends Alcoholics Anonymous meetings. 6.  On15 April 2011, the general officer directed filing of the 24 February 2011 GOMOR in her official personnel file suspended for 180 days contingent upon her committing no further misconduct. 7.  On 26 September 2011, the general officer who issued the GOMOR directed its filing in her official military personnel file and its removal from her local personnel record based on a U.S. Army Criminal Investigation Division (CID) investigation into the possible larceny of government property in the amount of $8,400.00. A joint search of her off-post residence by CID and civilian police resulted in the recovery of stolen government properly. 8.  On 27 April 2012, she was tried and convicted by general court-martial of the following offenses of stealing government property: * in Iraq, steal a B. E. Meyers GLARE MOUT 532P-M laser device with a value of over $500 * at or near Fort Wainwright, Alaska steal eight 15A Laserjet printer ink cartridges with a value of under $500 * at or near Fort Wainwright, Alaska wrongfully appropriate a black two-drawer filing cabinet of a value of under $500 9.  She was sentenced to reduction to private (PV1), forfeiture of all pay and allowances, and a bad conduct discharge as promulgated by General Court-Martial Order Number 6 dated 20 March 2013 which was corrected by the U.S. Army Court of Criminal Appeal Notice of Court-Martial Order Correction, dated 30 July 2013, was affirmed. On 6 March 2014, her discharge was directed by General Court-Martial Order Number 114. 10.  On 16 April 2014, she was discharged. The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separation), chapter 3, as a result of court-martial with a bad conduct characterization of service. Item 26 (Separation Code) of her DD Form 214 shows her code as "JJD." 11.  The applicant provided a partial medical evaluation board (MEB) narrative summary (DSM)-IV Treatment Diagnosis and Multiaxial Assessment and Discussion showing she had a history of depression emerging in the mid-2000s while on active duty. During her depressive states she endorsed deep lows, thought of suicide, increased sleep, low energy, exhaustion, fatigue, lack of motivation, decreased appetite, lack of a hygiene routine and appropriate self-care and emotional numbness. She also had hypomanic episodes endorsing increased energy, expansive mood, racing thoughts, and decreased sleep, grandiose delusions with a history of destructive and high risk behaviors including reckless driving, sexual promiscuous behaviors and shopping sprees. In October 2010, she was diagnosed with bipolar disorder II. This occurred while she was entitled to basic pay and was aggravated by service. The treating medical provider stated within the report she was moderately to severely impair for further military duty. He further stated, "Given her history of destructive conduct, [he] hypothesized that [her] prior reprimanded and pending UCMJ [Uniform Code of Military Justice] can be directly or indirectly related to her mental illness." He also initiated the MEB process because he stated the applicant failed the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) for bipolar disorder II. 12.  Further, she provided four character reference letters from superior commissioned and noncommissioned officers (NCO) with whom she had worked. It appears the letters were part of her court-martial evidence. Each author stated, in effect, she was an outstanding NCO who executed her duties as a supply specialist or supply sergeant in an outstanding manner receiving impact awards during change of command or responsibility inventories. A warrant officer who also served as the brigade armament technician working closely with the applicant in the brigade arms rooms, stated she was a professional and often more mature than other supply sergeants with him he interacted in the course of their duties. She always maintained accountability of equipment and could be counted on to requisition equipment as needed or required. At times she managed hand receipts of equipment valued at over $1,200,000.00 without mishap or loss of equipment. 13.  From her VA medical record, she provided a report dated 5 January 2016 titled "Mental Health Diagnostic Assessment Consult." The physician relayed the applicant’s experiences in Iraq that contributed to her diagnosis of PTSD. She was riding in a convoy of buses when an Iraqi in a car collided with a bus causing a chain reaction and collision of the buses. She hit her head on the metal back of the seat and developed headaches which still persist. Her base came under frequent mortar attacks and enemy fire often the alarm would be sounded and she and others would seek cover in shelters. She had a fear of the incoming rounds because she did not think the shelters would protect them from a direct hit. She recalled one incident where a round landed near her location resulting in the loss of two Soldiers who were killed in action. She has dreams that the round landed closer to her location causing her and others bodily injuries. The VA physician continued the diagnosis of bipolar disorder and added PTSD. 14.  On 26 June 2017, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant did not meet medical retention standards for bipolar disorder II and there was indication for physical disability evaluation system processing. In fact, the applicant was undergoing an MEB with what appears to be a narrative summary completed prior to the date of her court-martial. Her military medical records show besides the diagnosis of bipolar disorder II, she also had diagnoses of obsessive compulsive disorder and alcoholism. A review of her records post service with the VA shows diagnoses of panic disorder and PTSD were added. Her VA service-connected disability rating was 60 percent (in 2017). Notwithstanding her boardable medical conditions, the available case material does not support the existence of a mitigating mental health condition at the time of her misconduct. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15.  The applicant was provided a copy of the advisory opinion on 29 June 2017 and given an opportunity to submit comments. She did not respond. 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, letters of support, and the medical advisory were carefully considered. The medical advisory official determined her behavioral-health concerns did not mitigate the premediated misconduct and subsequent discharge. She was provided the opportunity to rebut the advisory; however, she did not respond. 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. One Board member voted to upgrade to under other than honorable conditions (still less than under honorable conditions); however, the majority voted to leave the characterization as is. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, 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 (UCMJ), 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 UCMJ 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will 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 affirmed sentence ordered duly executed. a. Paragraph 1-14 states when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states a general discharge is 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. d. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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. 4. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD JJD is the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 3, Court-Martial 5. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the DA Form 2-1 and orders to verify the entries on the DD Form 214. 6.  Army Regulation 40-501 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties a. Paragraph 3-31 (Disorders with psychotic features) the causes for referral to an medical evaluation board (MEB) include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 (Mood disorders) the causes for referral to an MEB include persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. c. Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes for referral to an MEB include persistent or recurrence of symptoms require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance.      d.  The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve.  The medical conditions and physical defects, individually or in combination, are those, that:           (1)  Significantly limit or interfere with the Soldier's performance of their duties.             (2)  May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service.  This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring.             (3)  May compromise the health or well-being of other Soldiers.             (4)  May prejudice the best interests of the Government if the individual were to remain in the military Service.        e.  Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB.  Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service.  Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB.   7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the physical disability evaluation system according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18.  It states:        a.  The mere presence of an impairment does not, itself, justify a finding of unfitness because of physical disability.  In each case it is necessary to compare the nature and degree of physical disability present the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank or rating.  To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501.  These guidelines are used to refer Soldier to an MEB.        b.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.        c.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that:             (1)  The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.            (2)  An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.         d.  The fact that a Soldier has a condition listed in the Department of Veterans Affairs schedule for Rating Disabilities (VASRD) does not equate to finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty.      e. Provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.   8.  Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.  It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 9. 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 post-traumatic stress disorder (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. 10. 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. Boards are 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 misconduct that led to the discharge. 11. 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 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. 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) AR20160018833 5 1