ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20170007182 APPLICANT REQUESTS: through counsel: * reconsideration of his earlier request for an upgrade of his bad conduct discharge * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show Secretarial Authority in item 25 (Separation Authority) and item 28 (Narrative Reason for Separation) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Counsel with power of attorney * DD Form 214 * DD Form 215 (Correction to DD Form 214) * Letter from Army Board for Correction of Military Records (ABCMR) * Memorandum, subject: Army Directive 2014-28 (Requests to Upgrade Discharge by Veterans Claiming Post Traumatic Stress Disorder (PTSD)) * Sworn Declaration * Book Titled “Yankee Gone Home” (digital and print copy) * Military Entrance Processing Station (MEPS) Medical Records * Medical Records * Invoice to Law Firm * Law Firm Letter to Seattle Indian Health Board FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Numbers: * AC94-09738 on 1 March 1995 * AR20060001437 on 20 January 2006 * AR20070013061 on 11 September 2007 2. The applicant states he is requesting an upgrade his bad conduct discharge, based on the circumstances that led to his discharge, his positive history since discharge, his work history, his status as a father, his status as an active and productive member of society, as well as changes in Army policy as it relates to PTSD. He further states that changes to the PTSD regulation and new evidence require that this application be reconsidered as it was denied as untimely in 2007. 3. The applicant provides, a. Letter from Counsel, dated 26 January 2017, which states the requested amendments to the applicant’s DD Form 214, and states the relief requests are based on his recent diagnosis of PTSD, circumstances surrounding his combat service in Panama and his illegal drug use. b. Power of Attorney, dated 5 November 2015, which states that the applicant designates counsel to serve as his attorney in all matters relating to and/or arising out of his employment by the federal government of the United States of America. c. Letter from ABCMR, dated 14 January 2008, which states that the applicant’s previous request for reconsideration was not received within one year of the ABCMR's original decision and was returned without further action. It also states the ABCMR will not consider any further requests for reconsideration of this matter. d. Memorandum, subject: Army Directive 2014-28 (Requests to Upgrade Discharge by Veterans Claiming PTSD), dated 3 November 2014, which provides guidance to the Army Review Boards Agency (ARBA) on discharge upgrades pertaining to PTSD. e. Sworn Declaration, dated 3 January 2017, which states the applicant has applied for the fourth time for a reconsideration of an upgrade, and then he details his enlistment and how his punishment was against Army regulations, his court- martial was illegal and how the Army failed to treat his PTSD. He further explains his post Army career as a “bad paper veteran,” and the dissolution of his two marriages. He explains his lack of steady employment and “self-medication” for his diabetes. He was charged with 3rd degree trafficking, where he pled guilty, received a $3000 fine and spent time at a chemical dependency center. He states he has been arrested a minimum of 20 times by Homeland Security authorities and the Police Department, and has received hundreds in traffic fines. He acknowledges he receives supplemental security income of $700 a month plus food stamps. He states he is due a correction of his DD Form 214, back payment and interest, reinstatement of rank to E-4, repayment of $3000 in fines, payment of withheld wages, payment of GI Bill ($10,000) plus interest, dental benefits, VA payment of a previous surgery, and VA medical and counseling benefits. He states the military/VA has to find ways to admit wrongdoings to bad paper veterans. f. Book Titled “Yankee Gone Home”, copyright 2016, which claims it is a true story about Operation Just Cause, written by Franklin Hook. g. MEPS Medical Records, dated 11 March 1986, which show his medical conditions at the time of enlistment, specifically, that the applicant was in good health. h. Active Duty Medical Records, which show he was diagnosed with cocaine abuse. i. VA Medical Records, dated 17 July 2014, which show, in pertinent part, that the applicant was experiencing symptoms of PTSD, panic attacks, and depression. j. Invoice to Law Firm, dated 27 May 2016, which show payments made to counsel. k. Law Firm Letter to Seattle Indian Health Board, dated 29 April 2016, which states that their organization has been retained to represent the applicant. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 19 May 1987. b. He served in Panama from 11 September 1989 to 10 December 1990. c. On 22 January 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of wrongful use of cocaine. His punishment consisted, in part, of reduction to private/E-2. d. On 10 August 1990, the applicant accepted NJP under the provisions of Article 15 for one specifications of failure to report and disobeying a lawful command. His punishment consisted, in part, of reduction to E-1/PVT. e. His DD Form 458 (Charge Sheet) reflects that charges were preferred on 16 November 1990, for three specifications of wrongfully using cocaine. The chain of command recommended special court martial empowered to adjudge a bad conduct discharge. f. On 14 November 1990, an offer to plead guilty and an appendix stating that the convening authority would approve no discharge in excess of a bad conduct discharge and no confinement in excess of 3 months was presented by the applicant and both were accepted by the Commanding General (CG) on 29 November 1990. g. He submitted a request for forum on 14 November 1990, to request a trial by a military judge alone. He then submitted a stipulation of fact on 20 November 1990 admitting to factual evidence against him. h. On 1 December 1990, he submitted a pre-sentence report recommending he receive a sentence of reprimand, restriction, forfeiture of pay and hard labor without confinement. i. The pretrial recommendation of the Staff Judge Advocate (SJA) identified that the applicant was charged with three specifications of wrongful use of cocaine, there was no evidence to indicate that the applicant lacked mental capacity or responsibility, and that the company, battalion and brigade commanders all recommended trial by special court martial empowered to adjudge a bad conduct discharge. The CG approved all recommendations made by the SJA. j. On 3 December 1990, he was convicted by a special court-martial of three specifications of wrongfully using cocaine. The court sentenced him to a bad conduct discharge, forfeiture of $400 pay per month for 5 months, and confinement for 5 months. Pursuant to a pretrial agreement, the convening authority approved a bad conduct discharge, confinement for 3 months, and forfeiture of $400 pay per month for 5 months. k. Special Court Martial Order Number 16, dated 21 December 1990, shows the applicant plead guilty, was found guilty of three specifications of wrongful use of cocaine and shall receive a bad conduct discharge, confinement for 3 months, and forfeiture of $400 pay per month for 5 months is approved, and except for the bad conduct discharge, will be executed. The record of trial was forwarded for appellate review. l. On 16 April 1991, the appellate authority rendered a decision that held the findings of guilty and the sentence as approved by the convening authority was correct in law and fact. The findings of guilty and the sentence were affirmed. m. SCMO Number 24, dated 3 July 1991, finally affirmed the sentence to a bad conduct discharge, confinement for 3 months, and forfeiture of $400 pay per month for 5 months. The provisions of Article 71(c) having been complied with, the bad conduct discharge would be duly executed. n. He was discharged on 11 September 1991 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct Discharge). His DD Form 214, as amended by his DD Form 215, shows he completed 4 years, 1 month, and 15 days with 204 days of time lost. It also shows in: * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the Army Service Ribbon, Marksman Marksmanship Badge with Rifle Bar, Expert Marksmanship Badge with Hand Grenade Bar, Armed Forces Expeditionary Medal, and Army Good Conduct Medal * item 23 (Type of Separation), Discharge * item 24 (Character of Service), Bad Conduct * item 25 (Separation Authority), AR 635-200, Chapter 3, Sec IV * item 26 (Separation Code), JJD (Court Martial, Other) * item 28 (Narrative Reason for Separation), As a result of court martial, other 5. On 7 July 2017, the ARBA medical advisor/psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. There is no indication in the military records that the applicant failed to meet military medical retention standards in accordance with AR 40-501 (Standards of Fitness). b. In February 1990, he was enrolled in the Alcohol and Drug Abuse Prevention and Control Program and diagnosed with episodic cocaine, alcohol and cannabis abuse. c. The applicant contends that his combat related PTSD is the cause of his misconduct cocaine abuse. The applicant’s records, however, indicate that he had a history of drug and alcohol problems, including cocaine use, prior to his involvement in Operation Just Cause in December 1989. d. The applicant’s history of cocaine use prior to his exposure to combat precludes full mitigation of his misconduct cocaine use by PTSD developed during said combat. e. However, review of the record indicates that his cocaine use increased significantly after he was involved in combat in December 1989. It is more likely than not that this increase in cocaine use was caused by the trauma of his combat experiences and was an attempt on his part to self-medicate his resulting symptoms. As such, it is the opinion of the agency psychiatrist, based on the available information and in accordance with Army Directive 2014-28, that this applicant’s misconduct cocaine use is partially mitigated by his diagnosis of PTSD. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response. He responded on 17 July 2017 with a self-authored statement claiming he was the fall guy for the group of Soldiers guilty of the same infractions (drug abuse) and that his misconduct/drug abuse was due to PTSD. He states that he has medical issues, that without VA benefits, he has had to suffer many years. He further states that his special court martial was illegal. 7. The applicant’s mother wrote a letter to the President of the United States, claiming that no discharge upgrades has been given to bad paper veterans. She also wrote to the White House Chief of Staff, Secretary of Defense, Army Chief of Staff, and the Secretary of Veterans Affairs stating that the Army mistreated her son, because he was a drug addict by court martialing him and giving him a bad conduct discharge. 8. By regulation (AR 635-5): * item 24 (Character of Service) of DD Form 214 is the characterization or description of service that is determined by directives authorizing separation * item 25 (Separation Authority) of DD Form 214 is the regulatory or other authority cited in the directives authorizing the separation * item 28 (Narrative Reason for Separation) of DD Form 214 is the narrative reason for the separation based on the regulatory or other authority 9. By regulation (AR 15-185), the ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 10. By regulation, AR 635-200, a Soldier will be given a bad conduct discharge characterization of service 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. 11. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Although the medical advisory the found that the applicant’s misconduct cocaine use is partially mitigated by his diagnosis of PTSD, because his use of cocaine preceded his deployments, and because the applicant did not provide any character evidence to show that he has overcome his cocaine use after discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states 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 (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under other than honorable conditions) sates a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service. d. Paragraph 3-10 (Bad Conduct discharge) states 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. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC). It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 3. AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments. It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. 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. b. 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. 5. AR 635-5 (Separation Documents), prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 (Certificate of Release or Discharge from Active Duty). 6. 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. 7. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 8. 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. 9. 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 and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170007182 8 1