ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20180013938 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable condition (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 28 October 2018 * Self-Authored Statement (undated) * Department of Veterans Affairs Medical Center (VAMC) Letter (undated) * VAMC Psychologist Statement (undated) * Atlanta Behavioral Medicine Inc. Diagnosis, dated 6 February 2014 * Office of the Under Secretary of Defense, Memorandum for Secretaries of the Military Departments, dated 3 September 2014 * Letter of Reference, dated 30 March 2015 * Letter of Recommendation, dated 31 March 2015 * Letters of Reference, dated 24 April 2015 and 11 April 2016 * Cobb County Veterans Treatment Court Certificate, dated 13 May 2016 * Marietta Daily Journal Newspaper Articles, dated 13 May 2016 and 17 February 2017 * VA Form 21-0781 (VA Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder), dated 19 March 2017 * Peachford Behavioral Health System "MTP" Review, dated 14 June 2017 * Office of the Under Secretary of Defense, Memorandum for Secretaries of the Military Departments, dated 25 August 2017 * Stars and Stripes Article, dated 29 August 2017 * Letter of Reference, dated 15 October 2017 * Request for Medical Record File, dated 1 October 2018 * Medical Documentation Progress Notes, printed on 1 October 2018 * Character Reference Letter from his wife, dated 3 October 2018 * Green Zone Certificate of Training * Letters of Recommendation from the Vice President of SunTrust and the Director of Corporate Development and Community Affairs, Covenant Certified Nursing Assistant School (undated) * Letter from his VAMC Sponsor (undated) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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. The discharge he received was inequitable because it was based on one isolated incident in 1,206 months (10 Years) of service with no other adverse actions. The isolated event was influenced heavily by his untreated Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) he received from serving two combat tours to Iraq and Afghanistan. He had a condition that explained or contributed to his discharge. His condition started, or got worse, during his military service. b. According to Memorandum for Secretaries of the Military Department, Subject: Clarifying guidance to Military Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, such as PTSD, Major Depression, or Schizoaffective Disorder, he had PTSD and TBI symptoms and conditions due to his service in the United States Army. He received a TBI when he was in Afghanistan in 2009 and living with PTSD and TBI is unbearable without his military benefits. With a change to his character of service to general, he will advance in his recovery and receive the proper treatment necessary in living with PTSD and TBI. He desires to receive treatment from the Atlanta VAMC. 3. The applicant enlisted in the Regular Army for 6 years on 9 June 2004. He reenlisted in the Regular Army for on 5 August 2006. 4. General Court-Martial , issued by Headquarters, , on 14 September 2011, shows the applicant was convicted on, pursuant to his pleas, of the following offenses: * wrongfully possessing an object used for ingesting marijuana into the body, on or about 11 November 2010 * wrongfully possessing 11 hypodermic syringes, on or about 11 November 2010 * wrongfully possessing 5 hypodermic syringes, on or about 12 December 2010 * wrongfully requesting a loan from a Soldier junior in rank, on or about 15 September 2010 * two specifications of wrongfully requesting a loan from Soldiers junior in rank, on or about 15 September 2010 * escaping from custody, on or about 14 December 2010 * wrongfully using heroin, between on or about 8 December 2010 and on or about 12 December 2010 * wrongfully possessing heroin, on or about 11 December 2010 * stealing one Dell laptop computer, one Lexmark printer, two protective masks, four Combat Life Saver bags, one Cannon 10 megapixel digital camera, four Improved Outer Tactical Vest Plates, and one Fighting Load Carrier pack, military property, of a total value of more than $500.00, the property of the United States Army, between on or about 19 November 2010 and on or about 22 November 2010 * stealing one TomTom Global Positioning System, one Fossil wristwatch, and one MTX 750 Amplifier, of a total value of more than $500.00, the property of another Soldier, between on or about 24 November 2010 and on or about 29 November 2010 * stealing one wallet, one Armed Forces Bank Visa Card, one Fort Bragg Federal Credit Union Debit Card, and one Military Star Card of a total value of less than $500.00, the property of another Soldier, on or about 25 November 2010 * stealing one Honda Civic, a motor vehicle, of a value of more than $500.00, the property of "N.D.M.," on or about 29 November 2010 * stealing U.S. Currency of a total value of less than $500.00, property of Bank of America, on or about 5 December 2010 * stealing U.S. Currency of a total value of less than $500.00, the property of Pentagon Federal Credit Union, on or about 5 December 2010 * stealing U.S. Currency of a total value of more than $500.00, property of Bank of America, on or about 7 December 2010 5. The applicant was sentenced to reduction in grade to private/E-1, a forfeiture of all pay and allowance, 22 months of confinement, and discharge from service with a BCD. The convening authority approved the sentence as adjudged except for that part of the sentence extending to a BCD, ordered the sentence executed. He was credited with 112 days of confinement against the sentence of confinement. 6. The U.S. Army Court of Military Review appellate review is not available. However, General Court-Martial Order issued by Headquarters, U.S. Army Fires Center of Excellence and , noted that the specifications of the charges pertaining to the applicant requesting loans from other Soldiers junior in rank and escaping from custody were set aside and were dismissed. The remaining findings of guilty and only so much of the sentence as provided for reduction to rank/grade to private/E-1, confinement for 22 months, and a BCD had been finally affirmed. The applicant was credited with 112 days of confinement against his sentence to confinement. All rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and that portion of the sentence that was set aside were restored. The automatic forfeiture of allowances required by Article 58b of the Uniform Code of Military Justice (UCMJ) was waived effective 18 April 2011 and it was terminated on 14 September 2011, with direction that those funds be paid directly to the applicant's spouse. Noting that the portion of the sentence extending to confinement having been served, the BCD was ordered executed. 7. The applicant was discharged on 10 January 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Iraq from 24 July 2006 until 22 July 2007 and he served in Afghanistan from 15 April 2009 until 5 April 2010. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as a result of court-martial (other). He was discharged in the grade of private/E-1 with his service characterized as bad conduct. 8. During the processing of the case, an advisory opinion was received from the Army Review Boards Agency (ARBA) Clinical Psychologist to determine if there is a nexus between the applicant's reported behavioral health difficulties and the misconduct resulting in his discharge. The ARBA Clinical Psychologist states: a. Based on a thorough review, the applicant has been diagnosed and treated for a variety of conditions to include PTSD. Although these are acknowledged, his misconduct is only partially mitigated. His charges and specifications of possessing an object to ingest marijuana, possessing 11 hypodermic syringes, possessing 5 hypodermic syringes, and using heroin are mitigating. b. The applicant’s charge and specifications for larceny are not migrating and given the gravity and totality of the un-mitigating charge and specifications, an upgrade of his discharge is not recommended. c. Although the ARBA Clinical Psychologist included the fact that the charges of wrongfully requesting loans from Soldiers junior in rank and escaping from custody are not mitigating, these charges were set aside and dismissed as stated in General Court- Martial 9. The applicant was provided a copy of the advisory opinion for his information and/or possible rebuttal. He did not respond. 10. The applicant provides: a. A self-authored statement explaining the events which he contends led to his BCD. He provides letters of reference and recommendation from numerous individuals attesting to his good character and post service conduct. b. Medical documents including a letter from his VAMC psychologist stating that the applicant has been a patient since February 2014 and is diagnosed with schizoaffective disorder (Bipolar Type), PTSD, Polysubstance Use Disorder, and mild neurocognitive disorder (TBI) per treatment history. c. Memorandums for Secretaries of the Military Departments providing guidance to Military Boards for Correction of Military/Naval Records (1) "Considering Requests by Veterans for Modification of the Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment," and (2) "Considering Discharge Upgrade Requests by Veterans Claiming PTSD." d. Marietta Daily Journal newspaper articles honoring his graduation from the Veterans Court and his marriage. e. VA Form 21-0781 and his Certificate of Training for successful completion of the Green Zone Training. 11. The applicant's records show he had over 10 years of honorable service. He previously deployed to Iraq and Afghanistan during times of war. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published Department of Defense (DOD) guidance on equity, injustice, or clemency. 12. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 13. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. BOARD DISCUSSION: 1. 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, his deployments, the frequency and nature of his misconduct, the reason for his separation and whether liberal consideration applies. The Board considered the applicant’s diagnoses, his VA records with diagnoses, evidence of his his post service achievements and the review and conclusions of the medical advising official. The Board found there were in-service mitigating factors for a portion of his misconduct and that the post-service documentation provided supported a clemency determination. Based on a preponderance of evidence, the Board determined that an upgrade of the applicant’s character of service was appropriate. 2. After reviewing the application and all supporting documents, the Board determined that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected amending his DD Formn 214 for the period of service ending 10 January 2014 to reflect in item 24 (Character of Service) – “General, under 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. 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 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. Army Regulation 635-200 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. 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 duly executed. 3. 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. 4. 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. 5. 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 6. 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 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. 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, 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. 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. ABCMR Record of Proceedings (cont) AR20180013938 9 1