ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20180002309 APPLICANT REQUESTS: an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) letter, dated 21 November 2016 * VA Rating Decision, dated 17 February 2017 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: a. His discharge should be upgraded to honorable because of his mental state. He was affected, injured, and mentally unstable because of his post-traumatic stress disorder (PTSD) diagnosis related to combat in Operation Iraqi Freedom in 2004. b. As a result, his entire life has changed and he can’t even handle his finances. He has a fiduciary assigned over his finances because of his mental state. As a result of this devastating occurrence, he should be allowed to receive an honorable discharge, as the bad conduct discharge happened after his deployment. c. He believes the record to be unjust because he is a good person and does not deserve this. Please upgrade his discharge so he can move on with his life. He has a family, a wife and three wonderful kids. He looks forward to closure. 3. After 4 years of honorable service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 17 April 1997. 4. He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 July 2000, for without authority, failing to go at the time prescribed to his appointed place of duty on 16 June 2000. 5. A DD Form 2329 (Record of Trial by Summary Court-Martial) shows the applicant was arraigned and tried by summary court-martial on 20 December 2002 where he was charged with and found guilty of: * being disrespectful in language and deportment on 18 November 2002 * willfully disobeying the order of a noncommissioned officer on 18 November 2002 6. He was sentenced to reduction to the rank/grade of sergeant/E-5, forfeiture of $1,406.00, and restriction to his home, place of duty, commissary, Post Exchange, gym, and place of worship. The sentence was approved except that reduction was suspended for 6 months and if no misconduct punishable under the UCMJ was committed during that period, reduction was vacated. 7. He served in Kuwait from 4 August 2004 through 21 August 2004 and in Iraq from 22 August 2004 through 28 July 2005. 8. Headquarters, U.S. Army Infantry Center and Fort Benning General Court-Martial Order Number 37, dated 10 July 2008, shows he was arraigned and tried by general court-martial, where he was charged with and found guilty of: a. attempting to steal U.S. currency, of a value of over $500.00, the property of the U.S. Government, between on or about 1 August 2005 and 1 December 2005; b. conspiring with R____ L____ between on or about 1 August 2005 and 1 December 2005, to commit larceny of U.S. currency of a value of over $500.00, the property of the U.S. Government, and in order to effect the object of the conspiracy, received a receipt for cleaning of clothes for over $4,000.00 and notified the claims office at Fort Carson, CO, that the bill submitted for cleaning clothes had been paid, when in fact it had not, after providing this receipt to the Fort Carson Claims office asking for reimbursement; c. making an official statement with intent to deceive between on or about 1 August 2005 and 1 December 2005, that he paid to have his clothes cleaned, or words to that effect, in an attempt to file a claim, which statement was totally false and was then known by the accused to be false; d. willfully disobeying a lawful order from a superior noncommissioned officer on divers occasions on or about 22 November 2006, to at-ease, stop talking, and to not say anything until asked, or words to that effect; e. willfully disobeying a lawful order from a superior noncommissioned officer on or about 7 February 2007, to sit in the bleachers until after formation, or words to that effect; f. willfully disobeying a lawful order from a superior noncommissioned officer on or about 3 November 2006, to report to Freedom Hall immediately following traffic court for combative’ s detail, or words to that effect; and g. willfully disobeying a lawful order from a superior noncommissioned officer on or about 4 October 2006, to not play basketball at any gym until further notice because of the fight he had while playing basketball, or words to that effect. 9. On 15 January 2008, he was sentenced to reduction to the rank/grade of private/E-1, confinement for 1 year, and discharge from the service with a bad-conduct discharge. 10. On 28 May 2009, the U.S. Army Court of Criminal Appeals, after consideration of the entire record, including consideration of the issues personally specified by the appellant, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence were affirmed. 11. On 4 November 2009, on consideration of the petition for grant of review of the decision of the U.S. Army Court of Criminal Appeals, the U.S. Court of Appeals ordered the said petition be denied. 12. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a bad conduct discharge on 25 January 2010, as a result of court-martial, after 11 years, 11 months, and 21 days of net active service this period. His prior period of continuous honorable active service is annotated in item 18 (Remarks). 13. There is no evidence of record the applicant was ever diagnosed with or treated for PTSD or traumatic brain injury (TBI) at the time of his service. His electronic service records do not contain a copy of a medical examination conducted at the time of his discharge. 14. In an unrelated, but similar request, the applicant previously applied to the ABCMR requesting the amendment of his bad conduct discharge to medical discharge. On 19 February 2015, the Board denied his request, having found the evidence presented did not demonstrate the existence of a probable error or injustice. 15. The applicant provided a letter from the VA, dated 21 November 2016, which states he is 100 percent permanently and totally disabled due to service-connected causes. This letter does not enumerate his specific diagnosed disabilities. 16. The applicant provided a VA Rating Decision, dated 17 February 2017, which shows he was found mentally incompetent and unable to manage his financial affairs due to cognitive issues from his TBI. 17. On 8 May 2018, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. The ARBA medical advisor/psychologist stated: a. A review of the applicant’s electronic medical record (AHLTA) revealed diagnoses of alcoholism (2009), anxiety disorder, not otherwise specified (2009), depression (2006), generalized anxiety disorder (November 2009), and interpersonal relationship problems (2006). He had no active duty diagnosis of PTSD or TBI. A 5 November 2009 note shows he produced a score of 83 on the PCL-M (PTSD Checklist – Military), a score with a maximum of 85, though the psychologist writing the note raised questions about the applicant’s history of “evasiveness” relative to deployments and the “possibility” that the applicant was “altering facts about his history.” b. The ARBA medical advisor concluded the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 18. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded on 10 June 2018, stating: a. He disagrees with the ARBA medical advisor’s opinion stating his psychologist wrote a note on 5 November 2009 that “raised questions about his history of evasiveness related to deployments and the possibility he was altering facts about his history.” b. How could he alter facts about his history when the psychologist knows nothing about his childhood background unless he tells her? And if she was referring to any other history, he can’t control what other false information she received about him. Those are all opinions and in his mind should be left out of his records. About his so- called “history of evasiveness”, it is funny, because he only deployed one time and he served his country through adversity. This is crazy to raise questions about his history of evasiveness related to deployments. What facts was this based on? She surely didn’t raise any questions or concerns with him. c. It seems to him he went to her (the psychologist who made the annotation in his medical records) with his problems and shared confidential, privileged information about himself and the minute he left she added derogatory notes in his file without him being present. Unless the psychologist and the ARBA medical advisor actually know what’s going on inside his head, they should stick to the facts and please not rush to a final determination about him based on some opinions someone wrote behind his back. The facts are he did complain about his PTSD and he did score an 83 on the PCL-M test. d. He did his part informing the Army about his PTSD after his single deployment, so please take this into consideration. He couldn’t do any more than his part in requesting the necessary help he needed. He had chronic PTSD after his deployment and reached out for help. He was being considered for a medical board, but the process wasn’t pushed. The advisory opinion even states it is not applicable whether he failed medical retention standards, warranting a separation through medial channels. Please take that into consideration. He is only trying to upgrade his discharge and behavioral health conditions were present at the time of his misconduct. He is sorry all of this happened. e. He never received a medical examination which violated his rights. Title 10, section 1177 requires a medical examination for Soldiers who were deployed overseas in support of a contingency operation or sexually assaulted during the previous 24 months and who are diagnosed by a physician, clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse as experiencing PTSD or TBI. The required medical examination relates to the basis for administrative separation under conditions other than honorable or the overall characterization of service of the member as other than honorable. The medical examination and procedures required do not apply to court-martial proceedings under the UCMJ. 19. 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. 20. Title 10, U.S. Code, section 1177, provides that the Secretary of a Military Department shall ensure that a member of the armed forces under the jurisdiction of the Secretary who has been deployed overseas in support of a contingency operation, or sexually assaulted during the previous 24 months and who is diagnosed by a physician, clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse as experiencing PTSD or TBI or who otherwise reasonably alleges the influence of such a condition based on their deployed service or sexual assault, receives a medical examination to evaluate a diagnosis of PTSD or TBI. The medical examination shall assess whether the effects of PTSD or TBI injury constitute matters in extenuation that relate to the basis for administrative separation under conditions other than honorable or the overall characterization of service of the member as other than honorable. The medical examination and procedures required by this section do not apply to courts-martial or other proceedings conducted pursuant to the UCMJ. 21. 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, or sexual harassment. Boards are 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 misconduct that led to the discharge. 22. 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. 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. 23. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 3, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions, medical concerns, the medical advisory and his rebuttal were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record, which included his rebuttal, 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 his premeditated 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the 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. Title 10, U.S. Code, section 1177, provides that the Secretary of a Military Department shall ensure that a member of the armed forces under the jurisdiction of the Secretary who has been deployed overseas in support of a contingency operation, or sexually assaulted during the previous 24 months and who is diagnosed by a physician, clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse as experiencing PTSD or TBI or who otherwise reasonably alleges the influence of such a condition based on their deployed service or sexual assault, receives a medical examination to evaluate a diagnosis of PTSD or TBI. The medical examination shall assess whether the effects of PTSD or TBI injury constitute matters in extenuation that relate to the basis for administrative separation under conditions other than honorable or the overall characterization of service of the member as other than honorable. The medical examination and procedures required by this section do not apply to courts-martial or other proceedings conducted pursuant to the UCMJ. 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, or sexual harassment. Boards are 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 misconduct that led to the discharge. 5. 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. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review was required to be completed and the affirmed sentence ordered duly executed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002309 8 1