ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 April 2019 DOCKET NUMBER: AR20180003964 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) * DD Form 293 (Application for the Review of Discharge form the Armed Forces of the Unite States) * Department of Veterans Affairs (VA) Initial Post-Traumatic Stress Disorder (PTSD) – Diagnostic Statistical Manual for Mental Disorders (DSM) V – Disability Benefits Questionnaire * VA Rating Decision 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 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 was a good Soldier until his deployment. Upon his return, he began to act out and self-medicate, not understanding he had PTSD. He was diagnosed with PTSD on 28 October 2017 and is currently in counseling. b. He is requesting an upgrade of his bad conduct discharge to general, under honorable conditions or honorable. 3. The applicant enlisted in the Regular Army on 31 October 1990 and served in Southwest Asia from 25 February 1991 through 30 March 1991, where he was awarded the National Defense Service Medal, Southwest Asia Service Medal with one bronze service Star, Kuwait Liberation Medal (Saudi Arabia), and Kuwait Liberation Medal (Kuwait). 4. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell General Court-Martial Order Number 4, dated 8 February 1995, shows he was arraigned and tried by a general court-martial at Fort Campbell Kentucky, where he was charged with and found guilty of: * wrongfully distributing approximately 4.5 grams of cocaine * wrongfully distributing approximately 5.5 grams of cocaine 5. On 25 June 1994, he was sentenced to reduction in rank/grade to private/E-1, forfeiture of $300.00 pay per month for 6 months, confinement for 18 months, and a bad conduct discharge. 6. Headquarters, U.S. Army Armor Center and Fort Knox General Court-Martial Order Number 85, dated 2 April 1999 shows the sentence of reduction to the rank/grade of private/E-1, forfeiture of $300.00 pay per month for 6 months, confinement for 18 months, and a bad conduct discharge, adjudged on 25 June 1994, was finally affirmed. That portion of the sentence pertaining to confinement having been served, the bad conduct discharge would be executed. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was given a bad conduct discharge on 26 October 1999, due to court-martial, after 8 years, 6 months, and 9 days of net active service. Item 18 (Remarks) notes his period of continuous honorable active service as being 31 October 1990 through 8 December 1992. 8. There is no evidence of record the applicant was ever diagnosed with or treated for PTSD or any other mental health condition during his period of service. 9. The applicant provided a VA Initial PTSD DSM V Disability Benefits Questionnaire, dated 28 October 2017. It shows the applicant was diagnosed with PTSD. It was determined he had occupational and social impairment with reduced reliability and productivity. His listed stressors were combat events in Saudi Arabia, including wearing protective gear, witnessing a scud missile attack wherein several Soldiers he knew died, and shooting at Iraqi enemies. 10. A VA Rating Decision, dated 8 November 2017, shows he was granted a service- connected disability rating for PTSD of 70 percent effective 24 March 2017. Service connection for bilateral loss of hearing and tinnitus were denied. A decision on entitlement to compensation for residual hernia surgery was deferred. 11. On 10 May 2018, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. The ARBA medical advisor/psychologist concluded the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 15 May 2018, and given an opportunity to submit comments. He did not respond. 13. 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. 14. 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. 15. 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. 16. 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 there is insufficient evidence to grant relief. The applicant’s contentions and the medical advisory opinion were carefully considered. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. The Board concluded his distribution of an illegal drug was premeditated and not a result of PTSD. Based upon the preponderance of evidence, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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. 4. 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. 5. 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) AR20180003964 4 1