ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160019610 APPLICANT REQUESTS: The applicant requests his bad conduct discharge (BCD) be upgraded to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: ? DD Form 149 (Application for Correction of Military Record) 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 since his discharge, he’s been very productive. He’s discovered through his doctors and therapy, his uncontrolled actions were due to untreated mental disorders. He’s been diagnosed with PTSD, depression, anxiety, and alcoholism since leaving the Army. He is now taking medication and receiving 100% disability from the U.S. Navy and would like his request for an upgrade to a general discharge be reconsidered. 3. On 30 October 2001, having previously served in the United States Navy, the applicant enlisted in the Regular Army. 4. He underwent a Special Court-Martial (SPCM) and was found guilty for: • willfully disobeying a noncommissioned officer (NCO) • was disrespectful in language and deportment toward a NCO • was disrespectful in language toward a First Sergeant • unlawfully striking a NCO in the face with his hand • commit assault upon a NCO by hitting him in the face with a dangerous weapon, to wit: a beer bottle • unlawfully strike a Soldier in the face with a closed fist 5. On 11 December 2003, the sentence was adjudged and he was sentenced to being reduced to Private (E1), to be confined for four (4) months, and to be discharged to from the service with a bad conduct discharge. The sentence is approved and, except for the bad-conduct discharge, will be executed. SPCM Order Number 88 states the portion of the sentence pertaining to confinement has been served. 7. On 26 March 2004, the applicant was released from confinement upon completion of his sentence. 8. On 17 June 2005, he was discharge accordingly. His DD Form 214 shows he completed 3 years, 4 months, and 2 days of net active service. He was awarded and/or authorized the National Defense Service Medal and Army Service Ribbon. 9. The applicant states since his discharge, he’s been very productive. He’s been diagnosed with PTSD, depression, anxiety, and alcoholism since leaving the Army. He is now taking medication and receiving 100% disability from the U.S. Navy and is requesting an upgrade to a general discharge be reconsidered. His record shows, served in the U.S. Navy for 1 year, 1 month, and 17 days; he received a general discharge. 10. The applicant applied to the ADRB to upgrade his discharge. On 10 July 2013, the ADRB reviewed and denied the applicant's request for upgrade. The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized. 11. On 4 October 2017, an advisory opinion from an Army Review Boards Agency (ARBA) Medical Advisor completed and extensive review of the applicant’s medical personnel and records, it states, in pertinent part, the applicant’s diagnosis of PTSD is considered mitigating for some of the misconduct leading to the applicant’s discharge from the Army. a. PTSD is associated with difficulty with authority figures and irritability, there is likely a nexus between the applicant's PTSD and the offenses of disobeying a lawful order and being disrespectful in language and deportment. PTSD is considered mitigating for these offenses. b. The applicant's PTSD diagnosis is not considered mitigating for the applicant’s multiple offenses of assault. c. Additionally, the applicant's post service diagnosis of Major Depressive Disorder is not considered mitigating for any of the offenses leading to the applicant's discharge from the Army. 12. 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. 14. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the nature of the misconduct, the applicant’s diagnoses and the conclusions of the advisory opinion that his conditions were mitigating for some of his misconduct. The Board discussed the application of liberal consideration and determined that the misconduct, not mitigated by his conditions, was severe enough to not change his character of service at discharge. 2. After review of the application and all supporting documents, the Board determined that relief was not warranted. 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): Not Applicable ABCMR Record of Proceedings (cont) 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 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 ABCMR Record of Proceedings (cont) 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. 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 courtmartial. 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. ABCMR Record of Proceedings (cont) AR20160019610 ABCMR Record of Proceedings (cont) AR20160019610 1 4 1 AR20160019610 AR20160019610 1 5 AR20160019610 1