ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20160014902 APPLICANT REQUESTS: reconsideration of her prior request for an upgrade of her bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two copies of DD Form 214 (Certificate of Release or Discharge from Active Duty) * two letters from the Department of Veterans Affairs (VA) 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 AR20090017943 on 6 May 2010. 2. The applicant states: a. She would like her discharge upgraded to general based on her prior performance and her prior period of honorable service from 1989 through 1993. b. She was diagnosed with post-traumatic stress disorder (PTSD) and bipolar disorder before the Gulf War and the VA deemed them service-connected disabilities in 2012 after she applied in 2004. She was put on PTSD medication and diagnosed while in the service. c. Her court-martial appeal was approved in 1997, reducing her charges and sentence. 3. The applicant enlisted in the Regular Army on 14 November 1989 and reenlisted in the Regular Army on 12 August 1993 and again on 12 August 1995. 4.. Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart General Court- Martial Number 3, dated 18 January 1995, shows she was arraigned and tried before a general court-martial at, where she was charged with and found guilty of: * conspiracy to commit aggravated assault on or about 10 March 1994 * willfully disobeying an officer on or about 10 March 1994 * making a false official statement on or about 11 March 1994 * two counts of aggravated assault by striking Specialist on or about 10 March 1994 * wrongful solicitation to commit aggravated assault on or about 10 March 1994 6. On 7 September 1994, she was sentenced to confinement for 2 years, reduction to the rank/grade of private/E-1 and discharge from the service with a bad conduct discharge. 7. On 17 July 1996 the U.S. Army Court of Criminal Appeals opined, based on the evidence: * the finding of guilt with respect to solicitation could not be sustained * the finding of guilt with respect to aggravated assault by intentionally inflicting grievous bodily harm was upheld, however the finding of guilt with respect to aggravated assault by a means likely to produce grievous bodily harm could not be simultaneously sustained with the afore-mentioned aggravated assault * the remaining findings of guilty were affirmed * only so much of the sentence as it provided for a bad conduct discharge, confinement for 22 months (vice 2 years), and reduction to private/E-1 was affirmed 8. On 31 July 1997, the sentence to a bad conduct discharge, confinement for 22 months, and reduction in rank/grade to private/E-1, was finally affirmed. All rights, privileges, and property of which the accused had been deprived by virtue of that portion of the findings of guilty set aside would be restored. All having been complied with and that portion of the sentence extending to confinement having been served, the bad conduct discharge would be executed. 9. On 5 September 1997, she was discharged accordingly. Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct discharge. She completed a total of 6 years, 3 months, and 4 days of net active service. Her DD Form 214 in item 18 (Remarks) reflects her immediate reenlistments this period as 19891114-19930811, 19930812-19950811. It does not list her prior periods of continuous honorable active service. 10. There is no evidence of record she was ever diagnosed with or treated for PTSD or bipolar disorder during her period of service. 11. She provided a letter from the VA, dated 12 September 2012, which shows she was granted a service-connected disability rating of 70 percent for PTSD, also claimed as bipolar disorder effective 27 August 2010. 12. On 2 July 2018, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. The advisory found available documentation did not reveal evidence of mental health considerations that are sufficient to change the character of the discharge in this case. A nexus between the applicant’s misconduct and her mental health was not discovered. A copy of the complete medical advisory opinion has been provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 2 July 2018 and given an opportunity to submit comments, but she did not respond. 14. 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. 15. 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. 16. 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. 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. 17. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. 18. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relative to transition management, to include the preparation of the DD Form 214. Its states: a. DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the Regular Army. b. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify inclusive dates for each period of reenlistment in block 18 (Remarks) of the DD Form214. c. For Soldiers who have previously reenlisted without being issued a DD form 214 and are separated with any characterization of service except “Honorable”, enter in block 18 “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct and the reason for her separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA psychiatrist. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding her misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurred with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the correction described in Administrative Note(s) below. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the bad conduct discharge. 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): Item 18 (Remarks) of the applicant’s DD Form 214 shows: //IMMEDIATE REENLISTMENTS THIS PERIOD: 19891114-19930811, 19930812-19950811//. It does not state her continuous periods of honorable active service, as that was not the DD Form 214 preparation standard at the time of her discharge. It should also state “Continuous Honorable Active Service From 19891114 Until 19950811.” 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. 5. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relative to transition management, to include the preparation of the DD Form 214. Its states: a. A DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the Regular Army. b. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify inclusive dates for each period of reenlistment in block 18 (Remarks) of the DD Form214. c. For Soldiers who have previously reenlisted without being issued a DD form 214 and are separated with any characterization of service except “Honorable”, enter in block 18 “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. ABCMR Record of Proceedings (cont) AR20160014902 1 1