ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 March 2020 DOCKET NUMBER: AR20170001749 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to general under honorable conditions. 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) * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Medical Records, , Department of Behavioral Health and Developmental Services, Central State Hospital, June 1997 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 22 October 1999 * DA Form 2-1 (Personnel Qualification Record – Part II) * Report of Result of Trial, 29 October 2001 * Decision, U.S. Army Court of Criminal Appeals, dated 9 October 2002 * Transcript, Blue Ridge Community College, Undated * Letter, Applicant, dated 15 January 2018 REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 3-11 provided that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552(f), 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. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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. 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 AR20070011595 on 5 February 2008. The applicant provided his medical records as new evidence that was not previously considered by the Board. 2. The applicant states his discharge was inequitable because the circumstances surrounding his special court-martial stemmed from medically diagnosed depression and other psychological disorders. a. Before enlisting in the Army, he was admitted to a mental health facility. In the Army, he suffered from physical and psychological head and body trauma after being involved in a motor vehicle crash that required hospitalization. b. Since being discharged, he has earned an associate's degree. c. Upgrading his discharge will help him receive the proper treatment needed to assist him meeting his life goals and becoming a great representative as a veteran of the U.S. Army. 3. The applicant provided copies of his medical records from the Commonwealth of Virginia, Department of Behavioral Health and Developmental Services, Central State Hospital. It shows he was involuntarily hospitalized on 16 June 1997 and discharged on 24 June 1997. The discharge diagnosis states dysthymic disorder and chronic discord with stepfather. 4. The applicant enlisted in the Regular Army on 19 November 1999 for a period of 4 years. 5. On 29 October 2001, he was convicted by a general court-martial in accordance with his pleas of one specification of wrongfully using marijuana, two specifications of wrongfully distributing some quantity of methylenedioxymethamphetamine (commonly known as "Ecstasy"), and one specification of wrongfully possessing some quantity of methylenedioxymethamphetamine. He was sentenced to a bad conduct discharge, confinement 9 months, and forfeiture of all pay and allowances. 6. On 9 October 2002, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 7. On 10 October 2002, the U.S. Army Court of Criminal Appeals corrected the record to show the applicant's grade as private/E-1. 8. On 6 May 2003, he was discharged by reason of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 2 years, 10 months, and 22 days of creditable active service * his service characterization as bad conduct * the separation authority as Army Regulation 635-200, chapter 3 * the narrative reason for separation as court-martial, other * he accrued lost time from 29 October 2001 through 22 May 2002 9. On 5 February 2007, the ABCMR denied his request to upgrade his bad conduct discharge to an honorable discharge. The Board determined the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Trial by court- martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which he was convicted. While the applicant's good post-service conduct is commendable, it does not warrant granting the requested relief. 10. On 10 March 2020, the Army Review Boards Agency Psychologist reviewed the applicant's case to determine if there was a medical condition not considered during the separation physical process. The Agency Psychologist stated there is documentation supporting a behavioral health diagnosis at the time of his entry onto active duty and at the time of discharge. Dysthymic disorder is a chronic behavioral health condition that would have disqualified him from military service. He did not meet accession standards when he entered the Army and therefore would not have met behavioral health retention standards at the time of his discharge. Dysthymic disorder is not a mitigating factor for the misconduct that led to his discharge. 11. On 16 March 2020, the Army Review Boards Agency Case Management Division placed his application on hold for 15 days and provided a copy of the medical advisory to the applicant to allow him the opportunity to submit comments. 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, the frequency and nature of his misconduct, his conviction by court-martial and the reason for his separation. The Board considered the review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001749 5 1