BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180001516 APPLICANT REQUESTS: upgrade of his bad conduct discharge (BCD) 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) * self-authored statement * Military Police Blotter Report memorandum, dated 3 February 2004 * service medical records in excess of 180 pages * DD form 2707 (Confinement Order), dated 5 June 2004 * DA Form 5112 (Checklist for Pretrial Confinement), dated 5 June 2004 * Request for Psychiatric Examination/Sanity Board, dated 30 June 2004 * Sanity Board memorandum, dated 29 July 2004 * DD Form 457 (Investigating Officer’s Report), dated 1 September 2004 * Chain of Command memorandum, dated 19 October 2004 * Office of the Staff Judge Advocate memorandum, dated 13 July 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * brother’s statement of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. He humbly requests an upgrade to a more positive discharge. He feels he has provided enough documentation to support the conclusion that his characterization of service was much too harsh and inequitable, considering all his symptoms leading up to the court-martial and discharge. b. He was charged with and found guilty of missing movement and three counts of disrespect. While he does not condone his actions leading up to his discharge, he strongly believes had he received the proper medical treatment, clear legal guidance, advice, and support from his unit at the time of his negative performance that he could have been properly diagnosed, correctly treated, and possibly rehabilitated to continue serving his country. His frame of mind, suicidal ideations, depression, alcohol dependency, and anxiety did not allow him to think clearly, which were evidently the causes that led to his misconduct. c. In 2005 he was court-martialed, served time in jail, and ultimately received a BCD. He served almost 6 years in the Army. He witnessed deaths of family members, saw dead bodies while in combat in Iraq and experienced the death of is dear brother, among other daily stressful military situations. All of these led up to his illnesses of feeling worthless which left him feeling useless, suicidal, uncontrollably action out frustrations and being a failure to the Army, his family, and the world as a whole. d. His suicide attempts were what he believe to be his only way out. He felt like he was in a deep, dark pit that he knew he could not climb out of. The depression left him incapable of even thinking properly. The prescribed medication only made him feel worse. Whenever he closed his eyes, all he could see were the dead bodies. The German doctors that treated him diagnosed him as being suicidal and felt he should not be returned to the war zone, but his command felt he was only acting out and refused to acknowledge his condition. Prior to the misconduct and his discharge, he performed his duties well for 5 years. It was the stressors of combat, fearing he would die in Iraq, missing his brother’s funeral, seeing dead bodies that led to the misconduct, but his chain of command refused to acknowledge that. e. He is still struggling with the same symptoms to this day. Some of the same struggles he experienced back during his time on active duty are still surfacing. The over 5 years of his service meant nothing to the Army. There were many sacrifices his family made, but it’s as if they did not amount to anything as far as the Army was concerned. The BCD discharge he received ruined him and his family for the rest of their lives. As he talks to others who have been discharged for similar actions, they are shocked when he tells them his story. You see, some have done much worse, but they received much lesser charges. He is currently struggling to repay a debt to the Army because they say he was overpaid. That, along with taking care of his family, has been a daily struggle. f. He was not afforded any benefits. He can’t even apply for a better paying job on the military base. He can’t even go to the Department of Veterans Affairs (VA). He’ll never be able to afford a home. He’s received an all-around rough sentence for which he will pay the rest of his life. While he doesn’t condone his actions, he is truly sorry for the mistakes he made and humbly requests the Board relook at his attached records and favorably consider his request. 3. The applicant enlisted in the Regular Army on 27 October 1998 and was awarded the military occupational specialty (MOS) 92G (Food Service Operations Specialist). 4. A General Officer Memorandum of Reprimand, dated 12 February 2004, states: * the applicant was reprimanded for operating a motor vehicle on a public road while under the influence of alcohol * German Police stopped him for driving erratically and speeding on 2 February 2004, after which they administered a breathalyzer test which he failed * the applicant was apprehended and released to the Military Police, who then administered a field sobriety and breathalyzer test, which he failed * further investigation revealed he did not have a valid license 5. Records indicate the applicant deployed to Iraq from Germany on an unspecified date in February 2004 through an unspecified date in April 2004, when he was granted emergency leave to attend his brother’s funeral. 6. Multiple U.S. Army Medical Activity (USAMEDDAC) Wuerzburg, Department of Psychiatry records indicate: a. The applicant returned to Germany from emergency leave on 21 April 2004 and was admitted to a German facility on 23 April 2004 after a suicide attempt by a superficial cut to his wrist with a pocket knife while intoxicated. The applicant’s brother had passed away due to heart attack and although granted emergency leave, he missed the funeral due to a lag in the paperwork. He had also lost his father some years earlier to a sudden heart attack. He had no history of mental health problems until 3 weeks ago when he began having trouble with anger, sadness, anxiety, and difficulty sleeping, which he attempted to placate with alcohol. b. On 26 April 2004 he was transferred from the German facility and referred by his chain of command for admittance to the Wuerzburg Department of Psychiatry where he was given a mental status evaluation on the same date. The mental status evaluation shows: * the applicant was diagnosed with adjustment disorder with depression and anxiety and alcohol abuse * his proposed treatment was to follow up at the Army Substance Abuse Program and Social Work Clinic in Bamberg and Mental Health Clinic in Wuerzburg * he was given a temporary physical profile for 45 days to be reevaluated after 45 days, as he required treatment not available downrange in Iraq * he was found to meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 and there was no psychiatric disease or defect that warranted disposition through medical channels * the applicant’s diagnosis represented an acute psychiatric condition for which the proposed treatment regimen was appropriate; he was not seen as a danger to himself or others and should be able to perform regular duties in the rear detachment with treatment * following the prescribed treatment regiment, he was cleared for any administrative action deemed appropriate by his command, including separation for misconduct 7. A telephone consultation between the applicant’s commander and the Wuerzburg Psychiatry provider, dated 6 May 2004 shows: a. The applicant’s company commander spoke with the applicant’s mental health provider on the phone stating the applicant is to be sent downrange again to face Uniform Code of Military Justice (UCMJ) action and there are psychiatrists downrange who can take care of him, despite the mental health provider requesting a 45 day follow- up at the Wuerzburg clinic following the applicant’s suicide attempt. b. The commander stated the Soldier was disrespectful yesterday and missed movement when returning from emergency leave. The unit was going to go against the recommendation to leave him in Germany to face charges and wanted him to deploy back to Iraq. The psychiatric provider advised the command could go against the recommendation, but that it was a risk. The applicant may act out against them or himself as he felt stressed and backed into a corner. The commander reiterated he would not tolerate the applicant’s behavior and would redeploy him. The psychiatric provider instructed him in that case to take away his weapon, to consider pretrial confinement, and to consider legal action. 8. A Landstuhl Army Medical Center (LRMC) Report of Mental Status Evaluation, dated 16 May 2004, shows: a. The applicant was voluntarily admitted to LRMC for evaluation of a suicide attempt by forearm and wrist laceration on 9 May 2004. He was hospitalized from 12 May 2004 through 16 May 2004 and evaluated at that time. This suicide attempt occurred as his chain of command was attempting to return him to Iraq to face court martial proceedings for having missed movement to Iraq when he cut his forearm on 23 April 2004. b. He described persistent depressive symptoms since early April when he was informed of his brother’s death by myocardial infarction. The applicant left Iraq on emergency leave in early April, reportedly at significant risk to the lives of several unit members to get him out of Iraq, but missed the funeral. He became more depressed and drank daily after he returned to Germany. He stated ever since the first forearm laceration, he had been planning his eventual suicide once he had to return to Iraq. Over the week prior to admission, he has been angry and disrespectful to members of his chain of command and it is clear through discussions with the rear detachment commander that there is much anger in the unit toward this Soldier. The lacerations on 9 May 2004 were deeper than before and required 11 sutures. While hospitalized at LRMC, the applicant consistently stated he saw no way to deal with his grief about his brother’s death other than to return home to be with his mother and siblings and that he would kill himself if returned to his unit. c. His diagnoses are listed as major depressive disorder, alcohol dependence, and suicide attempt by forearm lacerations. It is the opinion of the examiner that the applicant was at high risk for suicide if returned to his unit and even more so if returned to Iraq without a clear plan for separation from the service. While one may speculate that his actions were purely manipulation to avoid returning to Iraq, it was his onion that there was significant evidence for high suicide risk based on the diagnoses of depression and alcohol dependence, the recent loss of a family member, and his demonstrated willingness to repeatedly (and this time seriously) injure himself when faced with stressors. While his depressive disorder may be amenable to treatment, it is unlikely that it will improve in the potentially hostile environment he perceived at the rear detachment and even more so in the deployed unit. d. The examiner further found the applicant was mentally sound and had the mental capacity to understand and participate in any administrative proceedings. Continuation on active duty would likely result in a repetition of problems as noted prior to admission. The condition and problems presented by the applicant were not amenable to further hospitalization, treatment, disciplinary action, training, or reclassification. It was unlikely that efforts to rehabilitate him would be successful. e. The recommendations state the applicant required further inpatient care until the commander made a decision regarding the safety precautions necessary in order for release of the applicant back to the unit. There were essentially two potential solutions to keep the applicant safe until his legal and administrative issues could be addressed: (1) The commander could agree to choose nonjudicial punishment over court- martial, followed by rapid administrative separation for misconduct. If the Soldier were assured of rapid disposition out of the Army within 30-45 days via this route, his suicide risk would likely decreased markedly. (2) The commander implement pre-trial confinement immediately upon the applicant’s release from the hospital so that precautions were in place to prevent access to lethal means of self-injury. 9. A Walter Reed Army Medical Center (WRAMC) Narrative Summary and Patient Discharge shows: a. The applicant was transferred from LRMC in Germany to WRAMC Inpatient Psychiatry for monitoring and stabilization of suicidal gestures and possible suicide risk during further command evaluation. He was admitted to WRAMC on 18 May 2004 and discharged on 3 June 2004. b. During his stay he participated in individual and group psychotherapy, occupational therapy and art therapy. Upon transfer to WRAMC he was on Effexor, but secondary to side effects, the dosage was decreased. Shortly after his arrival to the ward, the applicant’s depressive symptoms resolved and he was observed to be interactive with other patient and ably to maintain a euthymic mood. The Effexor was then discontinued due to improvement in his mood symptoms. Toward the end of his admission he was able to face returning to his unit without feeling suicidal and he was stable enough to face the disciplinary action without resorting to thoughts of self-harm or suicide. The treatment team contacted his command to discuss his high risk for further impulsive actions and an expeditious administrative separation based on a non- boardable psychiatric diagnosis was recommended to obviate this risk. This course of action would not be taken and the applicant would face legal action upon return. c. He was discharged with no physical limitations, no medications, and transferred with an escort back to LRMC with instructions to go to the nearest medical treatment facility if he had thoughts of hurting himself or someone else. His diagnoses upon discharge were major depressive disorder, moderate, resolved, alcohol dependence, and personality disorder not otherwise specified with antisocial traits. 10. A DA Form 2707 (Confinement Order), dated 5 June 2004, shows the applicant was sentenced to pre-trial confinement because of twice committing the offense of missing movement by design on 22 April 2004 and 9 May 2004, disrespecting a commissioned officer as well as two noncommissioned officers (NCO) and intentionally injuring himself on various occasions between 22 April 2004 and 9 May 2004 in an intentional effort to avoid deployment. It further states the applicant’s misconduct has been directly related to his impending redeployment to Iraq and his history includes a variety of offenses ranging from numerous instances of disrespect to resisting arrest, indicating the most recent violations committed were not isolated. 11. In a request for psychiatric examination/sanity board on 30 June 2004, the applicant’s defense requested the convening authority to order an inquiry into the mental condition of the applicant prior to trial to determine if he was mentally responsible at the time of the alleged offenses and whether he was competent to stand trial. 12. A USAMEDDAC Wuerzburg, Department of Psychiatry memorandum, dated 29 July 2004, provides the findings of the Sanity Board conducted at the USAMEDDAC Wuerzburg, as follows: a. At the time of the alleged criminal conduct, the applicant was not experiencing symptoms of a severe mental disease or defect. b. His psychiatric diagnoses were major depressive disorder, single episode, moderate and alcohol dependence, in early remission. c. At the time of the alleged criminal conduct, he was able to appreciate the nature and quality and wrongfulness of his actions. d. The applicant has sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in his defense. 13. A DA Form 4187 (Personnel Action), shows the applicant’s duty status changed from present for duty to confined by military authorities at the Mannheim Confinement Facility for pre-trial confinement effective 3 August 2004. 14. A DD Form 457 (Investigating Officer’s Report), dated 1 September 2004, shows the applicant was recommended for general court-martial based on charges the investigated charges the applicant was informed of. 15. A Post Trial and Appellate Rights document, dated 6 October 2004, shows the applicant acknowledged being advised of his rights on 11 October 2004, including the right to advise by trail defense counsel, the right to submit matters in his own defense, the right to representation by Counsel before any and all courts, and the right to request review of his case by the Army Court of Criminal Appeals and the US. Court of Appeals for the Armed Forces. 16. A Defense Notification and Request for Production of Witnesses document, dated 12 October 2004, shows the applicant’s Defense notified the Government of the list of witnesses it intended to call during the case and requested the Government produce specific witnesses for trial. 17. A 7th Army Training Command, Office of the Staff Judge Advocate memorandum, dated 19 October 2004, shows the applicant’s chain of command recommendations in response to his request for separation from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of court-martial. All members of his command, his immediate commander, battalion commander, and brigade commander all recommended disapproval of the request for discharge in lieu of court-martial and recommended his discharge under other than honorable conditions in the event the request was approved. 18. Headquarters, 1st Infantry Division General Court-Martial Order Number 35, shows the applicant was arraigned and tried before a general-court martial at Bamberg, Germany on 22 October 2004 where he was charged with and found guilty of the following: * missing the movement of Flight LH931 and Flight LH636 on 22 April 2004, by design, with which he was required in the course of duty to move * missing the movement of an element of the 1st Battalion, 33rd Field Artillery Regiment on 9 May 2004, by design, with which he was required in the course of duty to move * behaving himself with disrespect toward his superior commissioned officer on 5 May 2004, by saying to him, “shut the f**k up you young punk a** captain,” or words to that effect * being disrespectful in language to an NCO on 5 May 2004, by saying “what are you going to do if I don’t shut up?” * being disrespectful in language toward an NCO by saying to him, “mind your own business” and “shut the f**k up” * he was found not guilty of intentionally injuring himself by cutting his arm with a knife for the purpose of avoiding service on divers occasions from 22 April 2004 to 9 May 2004 19. On 22 October 2004, he was sentenced to reduction in rank/grade to private/E-1, confinement for 14 months, and discharge from the Army with a BCD. 20. On 13 July 2005, the Headquarters, 1st Infantry Division, Office of the Staff Judge Advocate’s post-trial recommendations were for approval of so much of the sentence as provided for reduction in rank/grade to private/E-1, confinement for 10 months, and a BCD. It was further recommended the applicant be credited with 141 days of confinement against the sentence to confinement. 21. Headquarters, U.S. Army Armor Center and Fort Knox General Court-Martial Order Number 191, dated 14 September 2006 shows the sentence of BCD, confinement for 10 months, and reduction to the rank/grade of private/E-1 were finally affirmed. The applicant was credited with 141 days of confinement against the sentence to confinement. That portion of the sentence extending to confinement has been served. All articles having been complied with, the BCD would be executed. 22. The applicant’s DD Form 214 shows he was given a BCD on 6 April 2007, due to court-martial. He completed 7 years, 10 months, and 25 days of net active service, of which the period from 3 August 2004 through 17 February 2005 was lost time and the period from 18 February 2004 through 6 April 2007, he was on excess leave. His continuous honorable active service is annotated on the form as having been from 27 October 1998 through 5 September 2001. 23. The applicant provided a statement of support from his brother, Sergeant First Class, a Religious Affairs NCO, which states: a. The applicant has always been someone you could talk to about anything and he makes everyone feel comfortable, as he displays a non-judgmental attitude, accepting everyone for who they are. The applicant has been through many traumatic situations in the Army that are currently affecting his quality of life in the civilian sector. b. He is dealing with his past hardships to the best of his ability, but the military should compensate him to help rectify past transgressions done to him during his military service. His lifestyle has been tremendously affected by his post-traumatic stress disorder (PTSD) caused by his military service, but he is still a Soldier at heart and a true believer I the Army Values. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, the reason for his separation and whether to apply clemency. The Board considered the in-service medical documentation in the records and the absence of post-service medical documentation. The ABCMR 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. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The applicant considered the letter of support, but found no other evidence of post-service achievements or letters of reference to support 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. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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. 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 (Active Duty Enlisted Administrative Separations) 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 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001516 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1