BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20160019703 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * two self-authored letters * reference list * Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) * U.S. Army Legal Services Agency letter, dated 26 May 2004 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * multiple U.S. Court of Veterans Appeals decisions for other Veterans FACTS: 1. The applicant states: a. He wants to start by saying thank you to the Board for serving our country and for taking the time to preside over cases of Soldier seeking upgrades. He joined the Army because it was a family honored tradition and something that I wanted to continue. During his 17 years of service, he gave all to God, country, unit and his family. Because of that, he received three Army Commendation Medals, Army Achievement Medals, Army Good Conduct Medals, and is a Gulf War Veteran. b. He was promoted through the ranks from private to staff sergeant and accomplished several things during the first five years of his career, such as getting to sergeant in combat and earning a driver’s badge for accruing over 10,000 miles accident free. He was a weapons expert and received a certificate of achievement for a project by the mayor of Barstow, CA for “Hays Across America.” He also received another award for volunteering on his off-duty time by organizing a gospel radio program called “The Upper Room”, which was broadcast every week. c. From 1991 through 1999, he served as a Scout Bradley Gunner with several divisional cavalry troops and platoons. He was responsible for the training and discipline of two cavalry scouts. He also served as an instructor in training Bradley crews to become proficient with the turret weapons systems and had two appointed duties at that time, Chaplain’s Assistant and dental readiness noncommissioned officer (NCO). He also became and instructor for his military occupational specialty (MOS) 19D (Cavalry Scout), where he trained over 460 Initial Entry Training recruits per year and was named instructor of the month on several occasions. d. When he transferred to Fort Polk, LA, he was the assistant operations NCO and was in charge of the squadron schools program. He also held the position of Battle Staff NCO in a Tactical Operations Center for the squadrons. He attended college, earning over 60 credit hours and in his off-duty time he was a church choir president and routinely fed the homeless. e. In 2002, the entire unit underwent a drug test and he was one of the few that tested positive for marijuana. He received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), but was never placed into the Army Substance Abuse Program (ASAP) until after he tested positive for the third time, about four months later. Once the unit enrolled him into ASAP and he successfully completed the program, he never tested positive again. Per Army Regulation 600-85 (Army Substance Abuse Program), the unit is supposed to enroll any Soldier testing positive on any drug into the ASAP program. f. He was in denial that he had an addiction. He regrets putting himself in that situation, no matter what was going on in his life at the time. With his step-father dying and his mother in the Intensive Care Unit, his son in the hospital, his own health issues and the deployment, he was under a lot of stress. He is not making excuses, because it was his mistake. Just maybe, if he had been enrolled in ASAP earlier, after his first positive drug test, he would not have tested positive on two consecutive subsequent times, leading to his bad conduct discharge. He does not know why his unit didn’t enroll him in the program sooner, but he still takes that responsibility. He has never tested positive for any drugs prior to or after this situation. g. In late 2001, before he ever tested positive, he was diagnosed with uncontrollable high blood pressure. He had an average blood pressure rate of 180/130, which is at a stroke level. With several months of treatments, the Medical Evaluation Board (MEB) made a decision for him to receive a medical discharge at the end of 2002, but since he tested positive three times without any help with him problem or addiction, he received a bad conduct discharge. h. Now his health has gotten worse, from uncontrollable high blood pressure, to congestive heart failure, to kidney disease. He does not have any health insurance and he does not know if it will get better unless he gets help. He served in the Gulf War, but he doesn’t know if there is a connection to his illness. In the Gulf War manual, it states there could be a possibility to contract a chronic disease. i. Since he has been out of the Army, he has been clean and went back to school, earning a dental assistant certification. He was hoping, after four Army Good Conduct Medals, serving honorably, and being a combat veteran that he would granted some mercy and be allowed to upgrade his discharge so he can receive VA benefits and seek medical treatments for his health issues and the Army flag upon his death. 2. The applicant enlisted in the Regular Army on 30 October 1985 and served in Southwest Asia from 23 December 1990 through 15 May 1991. 3. Two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) show he accepted NJP under Article 15 of the UCMJ on the following occasions for the following misconduct: * 28 April 1998, for falsifying his DA Form 705 (Army Physical Fitness Test Scorecard), with the intend to deceive by inserting erroneous scores and forging the signature of Sergeant First Class O____ on 1 April 1998, and he was reduced in rank/grade to specialist/E-4, forfeiture of pay, and extra duty * 28 June 2002, for using marijuana between on or about 10 April 2002 and 10 May 2002, and he was sentenced to reduction in rank/grade to sergeant/E-5, forfeiture of pay, restriction, and extra duty 4. The applicant’s available records are void of reference to his referral to, entrance into, and completion of the ASAP program. His service records do not contain documentation pertaining to a MEB. 5. Headquarters, U.S. Army Infantry Center and Court-Martial Order Number, dated, shows the applicant was arraigned and tried before a special court-martial at where he was charged with and found guilty of wrongfully using marijuana. 6. On 4 March 2003, he was sentenced to reduction to the rank/grade of private/E-1, forfeiture of $767.00 pay per month for 4 months, confinement for 4 months, and discharge from the service with a bad-conduct discharge. 7. Headquarters, U.S. Army Armor Center and Fort Knox Special Court-Martial Order Number, dated, shows the sentence to a bad-conduct discharge, confinement for two months, forfeiture of $767.00 pay per month for four months, and reduction to the rank/grade of private/E-1, as promulgated in the above reference special court-martial order, was finally affirmed. The service of the sentence to confinement was deferred on 4 March 2003; the forfeiture of $767.00 pay per month for four months was deferred on 4 March 2003 and terminated on 10 July 2003; and the forfeiture of $767.00 pay per month for four months was deferred on 4 March 2003 and terminated on 10 July 2003. The portion of the sentence pertaining to confinement was served. All else having been complied with, the bad-conduct discharge would be executed. 8. His DD Form 214 shows he was given a bad-conduct discharge on 28 January 2005, as the result of court-martial, after 19 years, 1 month, and 9 days of net active service. Among the awards and decorations he was awarded or authorized are the following: * Army Commendation Medal (3rd Award) * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (4th Award) * Korea Defense Service Medal, National Defense Service Medal (2nd Award) * Southwest Asia Service Medal (3 bronze service stars) * Kuwait Liberation Medal (SA) * Kuwait Liberation Medal (KU) 9. In June 2014, the applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge to honorable. After a review of all available evidence, the ADRB determined that clemency was warranted based on the applicant’s length and quality of service, to include combat. Accordingly, the ADRB voted to grant partial relief by upgrading the applicant’s characterization from bad-conduct to under other than honorable conditions and determined the reason for his discharge was proper and equitable, not changing it. 10. The applicant’s original DD Form 214, showing his bad-conduct discharge was voided and a new DD Form 214 was issued on 26 July 2016, showing his character of discharge as under other than honorable conditions. 11. On 14 January 2020, the Army Review Boards Agency (ARBA) clinical psychologist/medical advisor provided an advisory opinion, stating: a. The applicant provided a June 2002 MEB physical which noted personal stressors and depression; however his psychiatric exam was marked as normal and he was not on a psychiatric physical profile. The 13 November 2002 MEB proceedings indicate he was referred to the Physical Evaluation Board (PEB) for hypertension as he did not meet retention standards. There are no subsequent PEB proceedings. b. A review of his VA medical records indicate he does not have a service- connected rating. In September 2008, his primary care provider noted situational depression related to medical and financial stressors. He was diagnosed with mood disorder, secondary to a medical condition. In October 2008, he returned stating he was frustrated his good coping skills might offset any future attempt to become medically disabled and receive VA benefits. c. Based on a thorough review of all available records, there is insufficient documentation to determine whether or not the applicant had a behavioral health condition in-service that could have contributed to the misconduct leading to his separation. At this time, there is no medical mitigation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 15 January 2020, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include deployment, the frequency and nature of his misconduct, a special court-martial and the reason for his separation. The Board considered the previous ADRB upgrade of the applicant’s character of service. The Board considered the review and conclusions of the medical advising official and the available evidence of MEB and PEB processing. The Board found the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Board further considered the applicant’s overall service and the nature of the misconduct that led to his court-martial. Based on a preponderance of evidence, the Board determined that the character of service the applicant received was too harsh and that an upgrade was warranted based as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 amending the DD Form 214 for the period of service ending 28 January 2005 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 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, 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. 2. 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. 3. 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 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. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019703 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1