BOARD DATE: 24 April 2020 DOCKET NUMBER: AR20170003824 APPLICANT REQUESTS: Correction of his record to show his Bad Conduct Discharge (BCD) was upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter, dated 22 December 2016 * Veterans Affairs (VA) medical records * Character reference letters (3) 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 (ABCMR) 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 in a self-authored letter in pertinent part: a. He earned a number of Army Commendation Medals, Army Achievement Medals, Certificates of Achievement, the Air Assault Badge, combat lifesaver training, Primary Leadership Development Course, and achieved the rank/grade of sergeant (SGT)/E-5. He served with pride and honor during peacetime and combat. His first enlistment, he was stationed at Stuttgart, Germany for two years and stationed at Fort Ord, CA for two and one half years. During his time at Fort Ord, he served one year in support of Operations Desert Shield/Desert Storm and Provide Comfort. After the Gulf War, he returned to Fort Ord and extended his enlistment for 90 days and received an honorable discharge. b. During his second enlistment, he was sent to Hanau, Germany. He went through a period of heavy alcohol use and lots of partying. He partied with friends on a daily basis and he felt as if it was the life they all lived. He felt that if they had alcohol and partied every day, time would pass faster and they would not feel as down about being in Germany. He personally hated being in Germany. It was like he was back in Desert Storm on a daily basis. He drank to avoid the feelings that he was feeling at the time. To support the heavy drinking, he made a poor decision to use ration cards inappropriately. He was sentenced to 5 months confinement and a BCD. While confined, he attended classes to further his education and prepare for life after the military. He was wrong for the lapse in judgment and made a bad decision based off his mental state at the time. c. Life outside the military with a BCD has made things difficult for him and his family. He never ran from the truth when reporting to employers or people in general when asked. He always tells his story so that, just maybe, no one else would make the choice he made. He always tell children at the community outreach and the sports teams that he has coached to be truthful and ask for forgiveness when you know you have made an error in judgment. Nobody is perfect and people make mistakes. d. He has learned from his error in judgment and risk taking. If it was not for the treatment he has been receiving at the Birmingham, AL, VA for his diagnosed Post-Traumatic Stress Disorder (PTSD), he does not think he would be at this point mentally. He has lived years in depression and did not know it, but thanks to the mental health doctors he has been assigned, things are being addressed. He is thankful for the services available and he now knows they are much needed. He wished the services were in place and knowingly available after the Gulf War. The classes have greatly helped and made him more aware of addictions he was suffering from at the time 3. A review of the applicant’s official records show the following: a. On 17 September 1987, the applicant enlisted in the Regular Army. b. DA Form 2-1 (Personnel Qualification Record) shows in item 5 (Oversea Service) the applicant served in Saudi Arabia from 19 September 1990 – 25 August 1991. He was further assigned to Headquarters and Headquarters Company, 16th Corps Support Group, Hanau, Germany, on or about 11 July 1992. c. On 9 March 1995, he was arraigned by general court-martial convened by the Commander, Headquarters, Fifth Corps, and was tried for violating the Uniform Code of Military Justice. The court found him guilty of the following charges; conspiracy to violate a lawful regulation, and violation of a lawful regulation. d. The court sentenced him to reduction from E-5 to the lowest enlisted grade of E-1, confinement for 6 months, and upon completion of confinement, separation from the service with a BCD. e. On 5 June 1995, the convening authority approved and ordered the sentence executed, except for the part of the sentence extending to a BCD. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. f. On 21 March 1996, General Court Martial , affirmed and approved the findings of guilty and the sentence, and ordered the execution of the BCD. g. On 15 April 1997, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 3, section 4 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a BCD. This form further shows he completed 9 years, 1 months and 26 days of net active service. It also indicates he was awarded or authorized: * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Southwest Asia Service Medal with 3 bronze service stars * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Kuwait Liberation Medal (Kuwait) * Expert Marksmanship Qualification Badge with Rifle bar (M-16) * Air Assault Badge * Driver and Mechanic Badge 4. The applicant provides: a. VA medical records showing the applicant was diagnosed with anxiety disorder, unspecified (PTSD characteristics), depressive disorder unspecified. The provider note stated the applicant reported issues with his time in service, was around combat situations in Saudi Arabia/Kuwait and may have PTSD. He also completed cognitive processing therapy for PTSD. On 5 October 2010, during his compensation and pension examination (initial evaluation for PTSD) it was noted he had no previous diagnosis of PTSD. b. Character reference letters from professional and personal acquaintances stating the applicant was dedicated to self-improvement, showing respect to others, honest, trustworthy, excellent character, strong work ethic, a superior leader, and excellent mentorship qualities. 5. On 2 March 2020, the Army Review Boards Agency psychologist reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, she opined that: a. Review of the electronic VA medical record indicates the applicant has been evaluated or treated for sleep apnea, depressive disorder, unspecified, anxiety disorder, unspecified, hypertension, and bilateral plantar fasciitis. He does not have a service connected disability. b. There is documentation supporting a behavioral health diagnosis at the time of his discharge.; (b) A review of his military records indicate that the applicant did meet medical retention standards in accordance with AR 40-501 (Standards of Fitness); (c) Depressive Disorder, unspecified nor Anxiety Disorder, unspecified are not mitigating factors for the premediated and purposeful misconduct that led to his discharge. While no documentation was provided to support a diagnosis of PTSD, PTSD would not be a mitigating factor for the misconduct that resulted in his conviction and discharge. c. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. On 18 and 19 March 2020, the applicant responded to the Case Management Division (CMD) official requesting an extension to the 15 day ex parte communication suspense. He was given an extension to 3 April 2020. 7. On 2 April 2020, the applicant replied to the CMD official stating he was having a hard time getting his records from the VA due to the COVID-19 epidemic and requested more time. The CMD official informed the applicant that his extension was disapproved. However, if he was unable to provide a rebuttal he could withdraw his application with a formal request, and he could reapply at a later date. If he did not reply, his application would be processed and he would be informed of the final determination. The applicant did not respond. 8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10 USC, 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. 9. AR 635-200, in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is a separation with honor. 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. 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. c. Paragraph 11-2 states that a Soldier will be given a BCD 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. 10. 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; 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 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 that misconduct which led to the discharge. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 11. The ABCMR applicant’s guide to applying to the ABCMR states if the ABCMR obtains an advisory opinion about the member’s case, the member will be sent a copy. The member will have 30 days to provide comments back to the ABCMR before the ABCMR considers the case. The member does not need to provide comments on the advisory opinion if they have nothing to add. Failure to comment on an advisory opinion does not mean the member agrees nor will it prevent a full and fair consideration of the member’s application. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include deployments, the frequency and nature of his misconduct, the outcome of a court-martial and the reason for his separation. The Board considered the VA records provided by the applicant and the review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s serious 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. REFERENCES: 1. Title 10 USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 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 USC, 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 635-200, in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is a separation with honor. 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. 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. c. Paragraph 11-2 states that a Soldier will be given a BCD 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. 4. 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; 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 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 that misconduct which led to the discharge. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 5. Although the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 6. The ABCMR applicant’s guide to applying to the ABCMR states if the ABCMR obtains an advisory opinion about the member’s case, the member will be sent a copy. The member will have 30 days to provide comments back to the ABCMR before the ABCMR considers the case. The member does not need to provide comments on the advisory opinion if they have nothing to add. Failure to comment on an advisory opinion does not mean the member agrees nor will it prevent a full and fair consideration of the member’s application. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003824 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1