ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 June 2020 DOCKET NUMBER: AR20180008300 APPLICANT REQUESTS: through counsel, the following corrections of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 August 2009 – a. item 12f (Foreign Service) to document all his foreign service, b. item 18 (Remarks) to add- * his deployment to Honduras * his deployment to Operation Iraqi Freedom (OIF) c. item 24 (Character of Service) – to show he received an under other than honorable (UOTHC) conditions character of service instead of a bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit 1 - DD Forms 214, dated 21 August 2009 * Exhibit 2 - * Orders 133-130, Headquarters, U.S. Army Air defense Artillery Center and Fort Bliss, dated 13 May 2002 * Permanent Orders 36-501, United States Army Air Defense Artillery Center and Fort Bliss, dated 5 February 2003 * Permanent Orders 325-501, United States Army Air Defense Artillery Center and Fort Bliss, dated 21 November 2003 * DA Form 1059 (Service School Academic Evaluation Report), dated 4 February 2005 * Exhibit 3 - * Permanent Orders 329-30, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, dated 24 November 2004 * DD Form 2414, (Joint Service Achievement Medal), dated 25 November 2002 * Citation (Joint Service Achievement Medal (JSAM)), undated * diploma, United States Army Military Police School, dated 6 July 2001 * certificate of training (Basic Police Bike Training), El Paso Police Department, dated 30 July 2004 * certificate of achievement, 787th Military Police Battalion, dated 5 July 2001 * certificate of achievement, 76th Military Police Battalion (PROV), dated 28 January 2002 * certificate of appreciation, 76th Military Police Battalion (PROV), undated * certificate of achievement, 76th Military Police Battalion, dated 25 October 2004 * certificate of achievement, 76th Military Police Battalion (PROV), dated 13 March 2002 * certificate of completion (AT Level 1 Awareness Training), dated 17 June 2004 * certificate of training (Law Enforcement Certification), 40 hours Instructional Course 3 to 7 May 2004 * certificate of training (Peace Officer Training Number 3801), dated 22 April 2004 * certificate of training (Combat Life Saver Course), dated 11 January 2002 * certificate of appreciation * Exhibit 4 - * MEDBASE Form 2766-M (Adult preventive and chronic care flowsheet), printed 31 March 2004 * DD Form 2795 (Pre-Deployment-Health Assessment), dated 11 February 2003 * memorandum, Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, dated 10 August 2009 * note (deformity toes and post-traumatic stress disorder (PTSD)), undated * ten (10), Standard Forms 600 (Medical Record-Chronological Record of Medical Care) * Exhibit 5 - * document, Linkedin, undated * certificate of training (Impact of Crimes on Victims), dated 23 January 2007 * certificate of training (Stress Management), dated 18 January 2007 * certificate #09-0615 (Coachella Valley Security Academy), dated 22 April 2009 * twenty (20), certificate of training (Universal Protection Service) * certificate (Allied Universal Core Training Program), dated 25 April 2017 * certificate of training (CA Refresher Training 2017), dated 21 September 2017 * Exhibit 6 - United States, Appellee v. Specialist "JNA" 2008 WL 4218528, dated 30 May 2008 * Exhibit 7 - General Court – Martial Order Number 109, Headquarters, U.S. Army Field Artillery Center and Fort Sill, dated 21 May 2009 * Exhibit 8 - * six (6), letters of character support for correction of records * letter (legal counsel (Attorney)), Veterans Advocacy Project, Sturm College of Law, University of Denver, dated 26 March 2018 FACTS: 1. The applicant did not file within the three-year period 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's counsel states, in effect, he requests the Board review the applicant's discharge, especially the context under which he was discharged. He also request clemency for the applicant's discharge to be upgraded to better reflect his service. Counsel contends the applicant served honorably for approximately four and a half years prior to his offending actions for which he received a general court-martial, three years confinement, and a BCD. Counsel provides a summary of the applicant's enlistment and service, which shows: a. The applicant enlisted into the Regular Army in March 2001, he completed training for Military Police (MP) and he was assigned to 978th MP Company, Fort Bliss, TX, when the national tragedy occurred. b. While assigned to the 978th MP Company the applicant deployed to the Military District of Washington, Task Force Bravo Operation, Honduras (2002), and Operation Iraqi Freedom (OIF). During his OIF deployment, he participated in prisoner detention, convoy escorts, and reservoir security, which caused him to be exposed to firefights, rocket-propelled grenades (RPG), mortar attacks, and improvised explosive devices (IED). The applicant's excerpts during his OIF deployment provide: (1) The applicant was on a convoy escort security detail in August 2003 when an IED detonated, which resulted in ringing in his ears. Although no one was hit and no vehicles were damaged from the IED his mental trauma and other OIF experiences remain. (2) The applicant guarded a water reservoir, which resulted in gunfire from across the river on an almost daily basis. Additionally, the noise from the massive generators made it hard to hear things because the water was being pumped from the Tigris River to the villages. c. The applicant was awarded the JSAM during his service with Task Force (TF) Bravo (B) in Honduras while participating in training and exercises for deployment and the Army Good Conduct Medal (AGCM) for his service between March 2001 to February 2004. He attended the Primary Leadership Development Course (PLDC) where he received superior ratings for his demonstrated abilities and he graduated in February 2005. d. The applicant was scheduled to reenlist in 2005 but declined and was transferred to the 72nd MP Detachment until his expected terminal leave in December 2005. After his transfer, he was informed he would be subjected to the "stop loss" program in June 2005. He was reassigned to the 978th MP Company (CO) for an OIF deployment, which would take him past his expiration of term of service (ETS) date of 1 March 2006. (1) The applicant was angered and upset, which led to him going absent without leave (AWOL), on 2 October 2005. The applicant states "the 978th MP CO had brought me back to the 978th MP CO, where they would put me on stop-loss and force me back to Iraq past my agreed upon 5 year contract. Sure, I was very angry and upset about this, but what most people didn't know, is that I was actually more scared than I was angry. Half of the 978th MP CO that I served with or known for the past 4 years were no longer in the unit or in the Army anymore as they had either changed duty stations or got out the military. I knew what I went through the first Iraq deployment and I couldn't bring myself to go again, I honestly felt that I was either going to kill someone that wasn't supposed to be killed because I was mentally screwed in my head or I was going to get someone killed because I'm not mentally there one hundred percent so I went AWOL." (2) The applicant's status changed to dropped from rolls (DFR) on 3 November 2005 and he was returned to military control on 10 March 2006. He was prosecuted for desertion under a general court-martial and sentenced on 6 November 2006; he served three years confinement and a received a BCD. While in the Personnel Control Facility (PCF) he completed stress management and crime victim impact classes. e. Argument – (1) Separate from his clemency request, he seeks correction of his military record to add his deployments for Honduras in 2002 (TF B) and to Iraq for OIF; these corrections will enable him to seek any necessary treatment. He also requests correction of his official military records and his DD Form 214 to reflect his foreign service while serving in the United States Army. (2) The applicant seeks correction of his record and an upgrade of his BCD as a matter of clemency under the provisions of Title 10 U.S.C, secton 1552 (a)(f)(2). He completed his sentence, and he has since stayed out of trouble. He expresses regret for his actions, though he does not deny their occurrence. He seeks to mitigate some effects of his discharge and the stigma on his life to date. (a) Since his discharge on 21 August 2009, his employment history includes a position with Universal Services of America and Allied Universal Security Services in CA, where he works as a security guard. His employment as a security guard is the most he can aspire to, which allows him to utilize his MP training and military experience. He has continued to improve himself and his employment prospects through vocational education for his employment requirements as a security guard with the state of CA. Counsel contends the applicant's employer attests to his work ethic and contributions to his employer. (b) The applicant has contributed to society beyond his employment by volunteering as the coach his son's soccer team to enrich the lives of his son, other children and their parents through his contributions. (c) The applicant's clemency request is supported by members of society, to include, non-commissioned officers (NCO), a First Sergeant (1SG (Retired)), and previous members of the 978th MP CO. (d) The applicant's award of the AGCM in 2004 shows his record of service was at a minimum exemplary enough to both qualify and receive the award. (3) The applicant's BCD should be upgraded on the basis of clemency due to his potential PTSD diagnosis. (a) He does not seek to change his BCD status for reasons of PTSD as he is aware that it was not treated as seriously in the era of his conviction as it is currently. However, counsel contends PTSD affected the applicant's judgment regarding his reaction to redeployment in 2005, which should be a factor of the Board's consideration under clemency and his award of the AGCM exemplary record prior to 2005. (b) After his conviction, the applicant sought and received a diagnosis for PTSD during his incarceration. (c) The applicant received a diagnosis and the medications listed in his medical records; however, the medical records were not forwarded to his previous unit from Fort Sill, OK during his incarceration. Counsel contends the records for his PTSD treatment and diagnosis have been requested from the off-post provider, however, the records have not been received as of the date of this request for correction of records to the Board. (d) Counsel contends the Board (ABCMR) under the provisions of the Hagel memorandum, dated 3 September 2014, the Under Secretary Kurta memorandum, dated 25 August 2017, and the National Defense Authorization Act (NDAA) for fiscal year (FY) 2017 requires the ABCMR give liberal consideration to individuals diagnosed with PTSD. The applicant requests the Board take these memorandums into consideration. h. Conclusion – counsel request that the Army Board for the Correction of Military Records (ABCMR), empowered by the Secretary of the Army under Title 10 U.S.C., section 1552, correct the applicant's record to properly reflect his foreign service and grant his request for clemency with regard to the BCD. 3. On 1 March 2001, the applicant enlisted into the Regular Army for a period of 5 years. 4. Orders 133-130, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, dated 13 May 2002, shows the applicant was ordered to deploy (Temporary Change of Station (TCS)) on 1 June 2002, for reassignment to Joint Task Force Bravo, Sato Cano Air Base, Honduras, for Security Augmentation Force for a period of 179 days. 5. Permanent Orders 329-30, Headquarters, U.S. Army Defense Artillery Center and Fort Bliss, dated 24 November 2004, shows the applicant was awarded the AGCM (1st Award) for his period of service from 1 March 2001 to 29 February 2004. 6. The applicant's record contains DA Forms 4187, which show his change in duty status on the following dates: * 2 October 2005 from present for duty (PDY) to AWOL * 3 November 2005 from AWOL to DFR 7. On 27 December 2005, the applicant was charged for AWOL on or about 2 October 2005, which led to his desertion, and his commander approved a DD Form 553 (Deserter/Absentee wanted by the Armed Forces) for civilian apprehension. 8. On 10 March 2006, the applicant returned to military control after his apprehension by civil authorities. 9. A DA Report of Results of Trial) and General Court-Martial (GCM) Order Number 5, Headquarters, U.S. Army Air Defense Artillery center and Fort Bliss, dated 22 February 2007 show: a. The applicant was tried by a General Court-Martial (GCM), on 6 November 2006; the applicant was found guilty of violating one specification of Article 85 of the Uniform Code of Military Justice (UCMJ), in that on or about 2 October 2005, with intent to avoid hazardous duty as an MP officer in a combat zone in support of OIF, he quit his unit and did remain so absent in desertion until he was apprehended on or about 15 March 2006. b. His sentence was to be discharged with a BCD and to be confined for 3 years. c. The sentence was adjudged on 6 November 2006. 10. Orders 312-49, Headquarters, U.S. Air Defense Artillery Center and Fort Bliss, dated 8 November 2006, assigned the applicant to Personnel Control Facility (PCF), Fort Sill, OK, with a reporting date of 14 November 2006. 11. An Enlisted Records Brief, dated 13 December 2006, shows: * OS/Deployment Combat Duty – is void of an entry * Dwell Time – "Start 20010814 / Month – Days 54 Months, 28 Days" * Flag Code – AA / Flag Start Date – 20051002 * Section IX – Assignment Information – he was assigned to 978th MP (WHMKAA) on 31 October 2001 to 8 June 2004 * he was assigned to 72nd MP DET LAW (WCV0AA) on 9 June 2004 to 31 October 2004 * he was assigned to 978th MP (WHMKAA) on 1 November 2004 to 31 March 2006 12. GCM Order Number 109, Headquarters, U.S. Army Field Artillery Center and Fort Sill, dated 21 May 2009, shows the applicants general court-martial case (GCM Order Number 5, dated 22 February 2007) was affirmed. He was credited with five days of confinement and Article 71(c) having been complied with his BCD would be executed. 13. A memorandum, Personnel Control Facility (PCF), shows the applicant's medical and dental records were not sent to the PCF. 14. On 21 August 2009, the applicant was discharged with a (BCD) under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, other. His DD Form 214 shows: * block 12c (Net Active Service This Period) – "0005 09 00" * block 12f (Foreign Service) – "0000 00 00" * block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – Army Commendation Medal, JSAM, AGCM, National Defense Service Medal, Global War on Terrorism Service Medal, NCO Professional Development Ribbon, Army Service Ribbon * block 18 (Remarks) – "EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES) –190 DAYS: 2009-20090821" 15. The applicant, through counsel provides: a. Permanent Orders (PO) 36-501, U.S. Army Air Defense Artillery Center and Fort Bliss, dated 5 February 2003, shows 978th MP CO (WHMKAA) was ordered to deploy in a Temporary Change of Station (TCS) status in support of (ISO) Operation Enduring Freedom (OEF). b. Permanent Orders 32-501, U.S. Army Air Defense Artillery Center and Fort Bliss, dated 21 November 2003, shows PO 36-501, dated 5 February 2003, was amended to read, in effect, Soldiers will deploy in a TCS status ISO Operation Iraqi Freedom (OIF). c. A DA Form 1059, Certificates of Training and Certificates of Achievement to show his level of development and service during his active duty period prior to his AWOL status. d. Standard Forms 600, which show he was treated and received prescriptions for medication(s) from a physician for sleep issues, anxiety, and PTSD was also listed on the on the forms. e. A court document 2008 WL 4218528 (U.S. Armed Forces) (Appellate Brief), number 08-0724, dated 30 May 2008 shows the applicant's summary of events for his BCD for violation of Article 85, UCMJ. f. Letters (six) of support for his correction of his military records to upgrade his BCD and list his foreign service periods of service on his separation documents. The letters show he is a person of good character who served his country and continues to support his community through volunteerism. 16. A review of the applicant's Interactive Personnel Electronic Records Management System (iPERMS) does not provide evidence of a diagnosis for PTSD. 17. An email, dated 29 May 2020, from the Defense Finance and Accounting Service (DFAS) states he served in the country of Kuwait (Foreign Service) from 1 April 2003 to 31 March 2004. 18. National Defense Authorization Act for Fiscal Year 2017, section 535 (Treatment by Discharge Review Boards of claim asserting Post-Traumatic Stress Disorder or Traumatic Brain Injury in connection with combat or sexual trauma as a basis for review of discharge), section 1553(d) of title 10, United States Code, is amended by adding at the end the following new paragraph: a. Subparagraph – (3)(A) In addition to the requirements of paragraphs (1) and (2), in the case of a former member described in subparagraph (B), the Board shall— * (i) review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the former member; and * (ii) review the case with liberal consideration to the former member that post- traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge of a lesser characterization b. Subparagraph – (B) A former member described in this subparagraph is a former member described in paragraph (1) or a former member whose application for relief is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, whose post-traumatic stress disorder or traumatic brain injury is related to combat or military sexual trauma, as determined by the Secretary concerned. 19. The Under-Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. 20. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. This regulation provides the following guidance for completing the DD Form 214: * item 12f (Foreign Service) - From the ERB/ORB, enter the total amount of foreign service completed during the period covered * item 18 (Remarks) – When an active duty Soldier is deployed with his unit during the period covered by the DD Form 214, the entry "SERVICE IN (name of country) FROM (inclusive dates in YYYYMMDD format)" 21. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. a. 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. b. Under other-than-honorable-conditions discharge: A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances: (1) When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of soldiers of the Army; and/or (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of soldiers of the Army. 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. 22. The Under-Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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, Boards 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. b. 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. 23. The Board should consider the applicant and counsel's statements and evidence in accordance with the 25 July 2018 Under-Secretary of Defense for Personnel and Readiness issued guidance regarding equity, injustice, or clemency determinations. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The evidence submitted is sufficient to correct the applicant’s DD form 214 to show his correct total overseas service in item 12f (Foreign Service) and to add his foreign service in Honduras and Iraq in item 18 (Remarks). 3. The Board reviewed the applicant’s AWOL and desertion from 2 October 2015 to 15 March 2006 with the intent to avoid hazardous duty as an MP officer in a combat zone in Iraq in support of OIF. The Board considered this a serious offense. The applicant’s general court-marital findings and sentence were subject to appellate and found to be legally sufficient and equitably under the circumstances. The Board reviewed the applicant’s post service conduct and commends him for his good citizenship. However, the Board did not find that this compensates for the seriousness of his offense. The Board found the applicant’s discharge proper and equitable and did not find justification for clemency. 4. The applicant and his counsel contend that the applicant may have suffered from PTSD causing his AWOL but there is no medical evidence presented to show that he had PTSD at the time of his offense. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his DD Form 214 for the period ending 21 August 2009 to show his total overseas service in item 12f (Foreign Service) and to add his foreign service in Honduras and Iraq in item 18 (Remarks). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his bad conduct discharge. 8/19/2020 X CHAIRPERSON 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. National Defense Authorization Act for Fiscal Year 2017, section 535 (Treatment by Discharge Review Boards of claim asserting Post-Traumatic Stress Disorder or Traumatic Brain Injury in connection with combat or sexual trauma as a basis for review of discharge), section 1553(d) of title 10, United States Code, is amended by adding at the end the following new paragraph: a. Subparagraph – (3)(A) In addition to the requirements of paragraphs (1) and (2), in the case of a former member described in subparagraph (B), the Board shall— * (i) review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the former member; and * (ii) review the case with liberal consideration to the former member that post- traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge of a lesser characterization b. Subparagraph – (B) A former member described in this subparagraph is a former member described in paragraph (1) or a former member whose application for relief is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, whose post-traumatic stress disorder or traumatic brain injury is related to combat or military sexual trauma, as determined by the Secretary concerned. 2. 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets the basic authority for the separation of enlisted personal. 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. Under other-than-honorable-conditions discharge: A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances: (1) When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of soldiers of the Army; and/or (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of soldiers of the Army. d. 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. 4. 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. 5. The Manual for Courts-Martial United States (2012 Edition) consist of the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and Non-judicial Punishment Procedures and should be consistently applied with the purpose of military law. a. Rule 706 (Inquiry into the mental capacity or mental responsibility of the accused). If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule. b. Article 71(c) of the UCMJ stipulates that if a sentence extends to death, dismissal, or dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived and an appeal is not withdrawn, that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is final judgment as to the legality of the proceedings. A judgement as to legality of the proceedings is final in such cases when review is completed by a Court of Military Review. 6. 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 post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. 7. 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 to 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. 8. The Under-Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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, Boards 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. b. 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. 9. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. This regulation provides the following guidance for completing the DD Form 214: * item 12f - From the ERB/ORB, enter the total amount of foreign service completed during the period covered * Item 14 - Decorations, service medals, campaign credits, and badges awarded or authorized for all periods of service will be entered in on the DD Form 214. * item 18 –When an active duty Soldier is deployed with his unit during the period covered by the DD Form 214, the entry "SERVICE IN (name of country) FROM (inclusive dates in YYYYMMDD format)" 10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. //NOTHING FOLLOWS//