ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20170014590 APPLICANT REQUESTS: an upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge (GD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Medial documents from Department of Veterans Affairs (VA) FACTS: 1. The applicant states he is suffering from several ongoing health issues which began during his military service. The mental and physical issues have continued to plaque him. Due to his discharge characterization, he does not qualify for medical disability and he is not able to afford the care he desperately needs through the civilian sector. He’s experiencing post-traumatic stress disorder (PTSD) symptoms, nerve damage in his right hand, debilitating migraines, and knee/back pain which renders him unable to move and work in the manner needed to support his family properly. He is seeking an upgrade in order to qualify for medical treatment and disability, this will ensure he is able to get the treatment he needs and allow him to live a productive life and support his loved ones. 2. General Court-Martial Order Number 29, dated 15 November 2013, shows he pled guilty and was found guilty of: * 25 counts of stealing or wrongfully appropriating government credit cards/funds of a value less than $500.00 each * 2 counts of failing to obey a lawful order * 2 counts of assault * 1 count of wrongfully endeavoring to alter a witness testimony 3. Sentence was adjudged on 20 December 2012. The court sentenced him to confinement for 2 years, reduction to the rank/grade of private/E-1, and a BCD. 4. On 28 April 2015, he was discharged under the provisions of Army Regulation 635- 200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court- martial with a BCD. His record is void of any awards for valor. 5. On 25 April 2018, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) psychologist, who states, a review of the available documentation found no evidence of a medical disability or condition which would support a change to the characterization for the discharge in this case. There is evidence the applicant engaged in significant misconduct during his time in service and medical and behavioral health conditions do not overcome his offenses and are not reasonably related to the misconduct which led to his early separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 6. In response to the medical advisory, the applicant makes the following statement: a. He is guilty of the crimes he was accused of. There is no excuse he can offer and the punishment he received was just and fair. Since his release he has lived according to the letter of the law. He has maintained steady employment, in fact the skills and training learned while serving has helped him to move up the ladder at an advanced rate. He has removed himself from all parties involved in his downfall, attended alcohol and substance abuse counseling, and volunteers any free time helping boys and young men deal with life changing issues. In spite of his status and actions, he tries to live by the Army values. In respect to the decision of whether or not his discharge status is changed, his request is much deeper than the need for medical treatment, he would like the chance to regain his honor. b. The medical issues listed as well as the ones not listed due plague him and they make his day to day living difficult, but fail in comparison to the weight of knowing he failed his leaders, peers and soldiers by not living up to the creeds, mottos, oaths, beliefs and ideas bestowed upon him. He is guilty of making a series of terrible decisions, of which he was justly punished, but he does not want this to erase the years of faithful and dedicated service to his country. c. He is asking for his honor to be restored. He understands it is the Board’s duty to safeguard the integrity of our Army; however, he’s asking the Board to consider changing his discharge status. This change will allow him the chance to live a more productive and fuller quality of life by gaining access to much needed medical and mental health treatment. A change in status will also allow him to hold his head high and be able to say to the world he is a veteran of the United States Army. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides a Soldier will be given a BCD 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. 8. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He acknowledged his misconduct and further advocated for relief in his rebuttal. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. He did not provide letters of support nor evidence of post-service achievement for the Board’s consideration. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: 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. A Soldier will be given a BCD 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. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, 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. //NOTHING FOLLOWS//