ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20160019636 APPLICANT REQUESTS: upgrade of his bad conduct discharge to general under honorable conditions. He also request a personal appearance before the Board. 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 he is requesting a discharge upgrade of his character of service so he can receive Department of Veteran Affairs (VA) medical care for his Post Traumatic Stress Disorder (PTSD). 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 February 2006. He maintained the rank of private/E-1 throughout his period of active service. b. On 18 July 2008, the applicant’s duty status changed from present for duty to confined by military authorities. c. General Court-Martial Order (GCMO) Number 36, dated 30 December 2008, issued by Headquarters, Fort Carson, CO, convicted the applicant for: * one specification of failing to obey a lawful general regulation by wrongfully transporting a weapon on the installation, transporting the loaded weapon, and failing to properly store the weapon between on or about 17 January 2008 and on or about 13 March 2008 * * one specification of resisting being apprehended by an armed forces policemen, authorized to apprehend the applicant on or about 6 May 2008 * one specification of intent to deceive, making a false official statement to Special Agent X____, on 13 March 2008, to the effect, “I run large quantities of drugs to California for the R. family,” * one specification of controlling a car, on or about 16 February 2008, while the alcohol concentration in his breath (as shown by chemical analysis) was equal to or exceeded .08 grams of alcohol per 210 liters of breath, which is the limit under Colorado Revised Statutes, 42-4-1301(2) * four specifications of wrongfully using, possessing, or distributing amounts of methamphetamines between 2 February 2008 and 14 March 2008 * one specification of stealing a Sony PlayStation 3 game and 2 plug-in oils, total value of less than $500.00, from the Armed Forces Exchange Services facility on 6 May 2008 d. The court sentenced him to a forfeiture of all pay and allowances, confinement for 27 months, and a bad conduct discharge. e. On 30 December 2008, the convening authority approved the sentence and except for the bad conduct discharge ordered it executed. f. General Court-Martial Order Number 253, issued on 16 December 2009 by Headquarters, U.S. Army Fires Center of Excellence, Fort Sill, OK shows that after a correction by the United States Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 28 May 2009, the applicant’s case was affirmed. The convening authority ordered the applicant’s bad conduct discharge executed. g. The applicant was discharged on 30 April 2010. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, with a bad conduct discharge. He completed 2 years, 5 months, and 11 days of active service with lost time from 18 July 2008 to 30 April 2010. h. The applicant was awarded or authorized National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Combat Infantryman Badge i. tem 18 (Remarks) shows he performed service in Iraq from 12 October 2006 to 14 December 2007, for a total of 1 year, 2 months, and 3 days of foreign service. 4. A medical advisory opinion was received from the Army Review Boards Agency (ARBA) Clinical Psychologist in the processing of this case. In summary, the Army Review Boards Agency medical advisor/psychologist was asked to determine if the 1. applicant’s military separation was due to a diagnosis of Post Traumatic Stress Disorder (PTSD) or another boardable behavioral health condition. The opinion was based on the information provided by the Board and records available in the DOD electronic medical record (Armed Forces Health Longitudinal Technology Application, commonly called AHLTA). The psychologist opined: a. The applicant’s medical records indicated he was seen by Behavioral Health for a Mental Status Evaluation on 7 March 2008 and was psychiatrically cleared. A post- deployment Traumatic Brain Injury assessment, dated 18 December 2007, indicated the applicant reported being around multiple blasts, but did not meet criteria for concussive symptoms. b. Based on a thorough review of available medical records and systems, there is no evidence the applicant met criteria for PTSD during his time in service. His record was void of the specific facts and circumstances concerning events that could have contributed to a PTSD service connected discharge from the Army, to include no medical or behavioral health documentation confirming a PTSD diagnosis or symptoms. c. Overall, there is no evidence that PTSD or another behavioral health condition mitigated the applicant’s multiple offenses of misconduct which led to an early separation from the Army. 5. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comments. He was given 30 days to provide a rebuttal or any comments, but did not respond within the time allowed. 6. By regulation, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 7. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. 9. The Board should consider the applicant’s submissions in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that they could reach and fair and equitable decision in the case without a personal appearance by the applicant. Additionally, based upon the seriousness and criminal nature of some of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate and that no error or injustice was present which would warrant making a change. 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. 6/4/2019 X CHAIRPERSON Signed by: 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. 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. 3. AR 15-185, Army Board of Corrections of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. 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. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. AR 635-200, in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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. a. c. Paragraph 3-11 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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- 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.