IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180005949 APPLICANT REQUESTS: reconsideration of his request for an upgrade of his Bad Conduct Discharge (BCD) to an Honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self Authored letter dated 7 May 2018 * DD Form 4 (Enlistment Document) dated 16 April 1977 * DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 18 March 1978 * DD Form 4 dated 17 May 1978 * NGB Form 22 (Report of Separation and Record of Service) dated 17 February 1979 * DD Form 4 dated 19 February 1980 * DD Form 4 dated 23 June 1981 * Personnel Qualification Record * DA Form 2-2 (Record of Court Martial Conviction * DD Form 214 dated 5 June 1985 * Veterans Administration Form 21-4138 (Statement in Support of Claim) dated 5 May 2017 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000969 on 21 September 2010. 2. The applicant states that he served honorably previously and the BCD that he received does not accurately reflect the character of his service. He had two periods of service and while serving with the first period he was promoted to Sergeant (SGT) / E-5. In addition, during his first period of service he was recognized as the “Soldier of the Month”, completed Airborne school, graduated at the top of his class in the Land Navigation course, completed the Basic Leadership Course, the Parachute Rigger course and received the Army Good Conduct Medal. He was also selected to represent the Army at the New Year Armed Forces Day parade, Yugoslavia Independence Day (1981) and augmented the parachute team in Alaska in response to the assassination attempt on President Ronald Reagan. He also served as a translator while stationed overseas, an indirect fire Infantry Man (11C), Senior parachute packer and parachute maintenance supervisor, radio telephone operator and has obtained the Army Service ribbon. He was also recognized as the most improved Soldier while incarcerated. a. On 7 May 2018 the applicant adds that he may be off by a month or 2 regarding injuries. He was one of the 2 top riggers selected to represent the Airborne Division at the Armed Forces Day Parade in 1979. He was also selected to assist with the backlog of parachutes that needed to be serviced. He also desired to become a Ranger. b. When he reenlisted he was sent to Italy. Upon arrival he was required to find his own transportation to the installation. Once he arrived he was placed in a barracks room with Soldiers junior to him in rank. He was advised that they didn’t need a SGT and therefore was placed in a position to pack and repair parachutes with the junior Soldiers, while the other NCO’s watched and performed rigger duties. c. During one of the missions, he was flown from Italy to Germany and he served as the drop zone security officer. He was required to account for the items that the Riggers dropped from the aircraft. The battalion commander inquired as to how many items were accounted for to which there was conflicting information between what he provided versus what his Lieutenant had provided. The battalion commander determined that his information was correct. d. During a live fire exercise, this same Lieutenant marched them into a live fire artillery range. For the first time in his life, he felt the ground shake. The sound of the impact resulted in ringing in his ears and a headache that lasted for 3 days. Still today, loud sounds bother him resulting in symptoms of Post Traumatic Stress Disorder (PTSD). e. He realized that he did not belong when another Non-Commissioned Officer (NCO) pulled out a membership card that starts with a “K” and threatened to assault him if he didn’t stay in his place. He didn’t understand it at that time, but now he does. He was placed on permanent Charge of Quarters (CQ) duties (24 hours on and 24 hours off). He performed this duty for 2 weeks until he missed one night of duty. As a result, he was reduced in grade to Specialist (SPC)/ E-4. f. He then began self-medicating with THC which ultimately resulted in him testing positive during a urinalysis for the first time in his career. He was then transferred to an infantry unit in Germany where he fit right in. He was assigned as the driver for the Executive Officer (XO) and was laterally appointed to the rank of Corporal. g. The trouble that he found was on his own time and had nothing to do with the military. He was young and afraid and unfamiliar with American traditions as he was from Puerto Rico. He was highly professional at his job as a Soldier and is deeply sorry for getting himself into trouble. 3. A review of the applicant’s available service records reflects the following: a. On 16 April 1977 he enlisted in the Army National Guard (ARNG) for 6 years. b. On 4 September 1977 he was ordered to active duty for completion of Basic Combat Training (BCT) and Initial Entry Training (IET). c. 18 March 1978 he was released from active duty after completing 6 months and 15 days; primary specialty indicates “parachute rigger”; Character of Service indicates “honorable.” d. On 19 January 1979 (Order# 14-1) he was discharged from the ARNG effective 17 February 1979 and enlisted into the Regular Army; Character of Service indicates “General” e. On 8 February 1981 he was promoted to Sergeant (SGT) / E-5. f. On 7 November 1982 he was charged with being Absent Without Leave (AWOL) from 3 – 7 November 1982. He was reduced to Specialist (SPC) / E-4 on 14 November 1982. g. On 14 September 1983 he was convicted by Special Court Martial for possession of marijuana with the intent to distribute (Article 134); also for the use of marijuana. He was sentenced to 2 months confinement, reduction to E-1, forfeiture of $190.00 per month for 4 months and a BCD. His sentence was adjudged on 27 October 1983. h. On 15 November 1983 he requested a deferment of confinement. His request was approved. He was therefore reassigned to the Fort Riley Correctional Activity (Order# 220-1) for training. i. On 6 December 1983 he requested to be placed in voluntary leave status. j. On 7 December 1983 he waived having a separation medical examination. k. On 16 December 1983 he was placed in a voluntary leave status. l. On 6 January 1984 (Special Court Martial Order# 4) he was found guilty of both specifications as charged under Article 134 and adjudged on 27 October 1983. m. On 12 January 1984 his status was changed to involuntary excess leave effective 6 January 1984. n. On 24 May 1984 (Special Court Martial Order 101) provides that his sentence had been adjudged as promulgated and therefore affirmed pursuant to Article 66 as duly executed. o. On 31 May 1985 (Order# 106-3) he was issued orders directing that he be discharged effective 5 June 1985. p. On 5 June 1985 he was issued a BCD as a result of a court martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) Chapter 3 section IV. 4. The applicant provides the following: a. DD Form 4 (Enlistment Document) dated 16 April 1977 – see 3a. above. b. DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 18 March 1978 – see 3c. above. c. DD Form 4 dated 17 May 1978 reflective of his reenlistment in the ARNG for 4 years 10 months and 28 days. d. NGB Form 22 (Report of Separation and Record of Service) dated 17 February 1979 reflective of his completion of 9 months and 1 day of service during this period with credit for 1 year 1 month and 2 days of previous service. e. DD Form 4 dated 19 February 1980 reflective of a 3 year reenlistment in the Regular Army. f. DD Form 4 dated 23 June 1981 reflective of his reenlistment for 6 years. g. Personnel Qualification Record reflective of an account of his personnel records as it pertains to previous assignments, awards, training and promotion history. Contained within is his assignment dates to both Italy and Germany, previous award of the Army Good Conduct Medal, Military Occupational Specialty (MOS) of 11C (Indirect Fire Infantryman) as indicated in his statement. This document also reflects his period of confinement and BCD, reduction in grade to E-1 and Time lost = 54 days in total. h. DA Form 2-2 (Record of Court Martial Conviction – see 3g. and 3m. above. i. DD Form 214 dated 5 June 1985 – see 3o. above j. Veterans Administration (VA) Form 21-4138 (Statement in Support of Claim) dated 5 May 2017 reflective of his request for VA entitlements based upon his initial separation wherein he received an honorable discharge. Further noted are injuries sustained (feet, ankles, head and back) while on active duty to include his referenced PTSD symptoms as noted in his opening statement. In this document he relates the condition to a concussion. He adds that he never sought treatment for these conditions while serving because he was too proud to mention them. 5. The applicant did not provide nor does review of his available military records reflect previous medical treatment received for the above injuries or diagnosis. 6. On 21 September 2010 Docket Number AR20100000969 the Board denied the applicant’s request for a discharge upgrade citing that there was no basis for upgrading the type of discharge that he received. The documentation provided did not reflect that the discharge that he received was erroneous or unjust. As a result the Board determined that clemency was not warranted. 7. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. While liberal consideration was applied, the applicant is not service connected for PTSD or any psychiatric condition. Rather, he is diagnosed with PTSD secondary to childhood abuse. However, documentation is insufficient to support trauma symptoms were present in-service leading to misconduct. Moreover, distribution of drugs is not a normal progression or natural sequela of trauma. Accordingly, an upgrade is not supported from a behavioral health standpoint. b. Due to the period of service, active duty electronic medical records are void. Active duty hard copy medical records are unavailable. c. The applicant is not service connected. In May 2018, the applicant went to behavioral health reporting childhood abuse and molestation still impacting him. He indicated mistreatment in-service because of his ethnicity and “rebelled” in reaction. He was diagnosed with PTSD secondary to childhood physical and sexual abuse, not military experiences, and Cannabis and Alcohol Use Disorder. In July, diagnoses were Anxiety Disorder NOS and Major Depressive Disorder (MDD). He discontinued care. In July 2019, the applicant reported anxiety, depression, anger, and substance abuse. He had a follow up in May 2020. Current diagnoses are PTSD secondary to child abuse, Cannabis Use Disorder, and Alcohol Use Disorder. 8. In reaching its determination, the Board can consider the applicant's petition, his statements, and the FSM's service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. 9. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief and amend the ABCMR decision set forth in Docket Number AR20100000969 on 21 September 2010. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement. The Board agreed with the ARBA Medical Advisor that the applicant’s PTSD is not service connected and, therefore, the condition does not mitigate the discharge. However, the Board found grounds for clemency due to sufficient evidence of generally honorable service and the passage of time since the misconduct that partially mitigate the Bad Conduct Discharge. Therefore, the Board agreed to upgrade the applicant’s discharge characterization to the lowest level of administrative discharge, Under Other Than Honorable Conditions. The Board found insufficient evidence to grant a further upgrade to General, Under Honorable Conditions or Honorable because the applicant was convicted of possession of marijuana with intent to distribute, and not just for personal use. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined there is sufficient evidence to warrant a recommendation for partial relief and amend the prior decision of the Board set forth in Docket Number AR20100000969 on 21 September 2010. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the discharge characterization of service on his DD Form 214, dated 850605, to “Under Other Than Honorable Conditions” vice “Bad Conduct.” 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 sets forth the basic authority for the separation of enlisted personnel. Under Chapter 3 it provides that a Soldier will be issued a Bad Conduct Discharge (BCD) pursuant only to an approved sentence of a general or special court- martial. The appellate review must be completed and the affirmed sentence duly executed. It further provides that: 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 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 UOTHC 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. 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 (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. 5. 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// ABCMR Record of Proceedings (cont) AR20180005949 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1