ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 March 2020 DOCKET NUMBER: AR20180014174 APPLICANT REQUESTS: The applicant requests, in effect, the 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 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he was dealing with post-war trauma around the time he reenlisted; as a result, he began to feel inadequate as a Soldier. He was about to be deployed to an area of conflict, but felt too ashamed to ask for help or inform his chain of command of his reluctance, feelings of guilt, and sense of personal failure. The applicant maintains, "up to this time of reluctance, my performance and dedication to my service (were) relentless." The applicant hopes the Board will take the foregoing into consideration when determining his character of service. 3. The applicant's service records show: a. After obtaining his parent's written consent, the applicant enlisted into the Regular Army on 25 November 1987 for 4 years; he was 17 years old. Following initial training, he was transferred to Germany; he arrived on 30 Mar 1988. b. On 24 December 1990, while still serving in Germany, the applicant deployed with his unit to Southwest Asia. Effective 30 January 1991, the applicant's chain of command promoted him to sergeant (SGT)/E-5. Permanent Order (PO) awarded the applicant the Combat Infantryman Badge for the period 17 January to 2 March 1991. The applicant redeployed from Southwest Asia on 1 May 1991. c. On 24 June 1991, the applicant immediately reenlisted for 2 years. On 13 August 1991, PO awarded the applicant the Army Good Conduct Medal (1st Award) for the period 25 November 1987 through 24 November 1990. On 24 February 1992, the applicant completed his tour in Germany, and orders reassigned him to Fort Hood, TX; he arrived at Fort Hood on 23 March 1992. d. On 11 July 1992, the applicant's Fort Hood unit reported a change in the applicant's duty status from leave to absent without leave (AWOL); the applicant returned to military control on 22 July 1992, but then left again in an AWOL status on 28 July 1992. The applicant returned to military control from this second AWOL period on 18 August 1992. e. On 13 October 1992, a special court-martial, empowered to adjudge a bad conduct discharge, convicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1) The court found the applicant guilty of two specifications of AWOL (11 until 21 July 1992 (11 days) and 28 July until 18 August 1992 (21 days)), and one specification of marijuana possession. (2) The court sentenced the applicant to a bad conduct discharge, 75 days' confinement, forfeiture of $523 per months for 2 months, and reduction to private/E-1. On 4 December 1992, the convening authority approved the applicant's sentence and directed the execution of all but the bad conduct discharge, pending appellate review. In addition, the convening authority suspended that part of the applicant's confinement sentence that exceeded 2 months. f. On 25 March 1993, the U.S. Army Court of Military Review affirmed the trial court's findings of guilt and the applicant's sentence. Subsequently, a special court- martial order (date illegible) verified the completion of the appellate process and directed the execution of the applicant's bad conduct discharge. g. On 8 February 1994, the applicant was separated with a bad conduct discharge; his DD Form 214 shows he completed 5 years, 11 months, and 18 days of net active creditable service. In addition, his DD Form 214 indicates he was retained 143 days beyond his expiration term of service, and had had two periods of lost time (920711 to 920721 and 920728 to 921012, respectively). The DD Form 214 further shows he had continuous honorable active service from 871125 to 910623, and it lists the following awards: * Southwest Asia Service Medal with 3 bronze service stars * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Combat Infantryman Badge * Driver and Mechanic Badge with Driver-T (Tracked Vehicles) Component Bar * Kuwait Liberation Medal 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 applicant asks the Board to consider that he was suffering from post-war trauma when he committed the misconduct that ultimately resulted in his discharge, and he notes, in effect, his service was otherwise exemplary; His record shows he deployed, was awarded a CIB, and went AWOL for 21 days approximately 1 year, 2 months and 11 days upon redeploying. 6. 6. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and made the following findings: PTSD is service connected. Based on liberal consideration guidance, and nexus between PTSD and avoidance, the basis for separation is medically mitigated. All three specifications of misconduct from special court martial occurred after his deployment to Southwest Asia. Two periods of absent without leave are types of avoidant behaviors and consistent with PTSD. Based on liberal consideration guidance, marijuana possession is medically mitigated. There are no military medical records available for review. Post-service, he has been diagnosed with PTSD, Major Depressive Disorder, Alcohol Use Disorder, and Cocaine Use Disorder by the VA. is 100% service connected for PTSD. 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 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. 8. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 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 to include deployment, his awards associated with wartime service, the frequency and nature of his misconduct, the court-martial proceedings and the reason for his separation. The Board considered the review and conclusions of the medical advising official and the applicant’s 100% VA service connected disability for PTSD. The Board found sufficient evidence of in-service mitigation to overcome the applicant’s misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was too harsh and a correction was required as a matter of liberal consideration. The Board concurs with the corrections stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found 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, in addition to the corrections stated in the Administrative Note(s) that follow, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 8 February 1994 to reflect in item 24 (Character of Service) – “Honorable” 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. AR 600-8-22 shows Soldiers who participated in Operation Desert Storm are eligible for the following awards: * Kuwait Liberation Medal – Saudi Arabia for the period 17 January until 28 February 1991 * Kuwait Liberation Medal – Government of Kuwait for the period 2 August 1990 until 31 August 1993 3. The applicant's service records affirm he was deployed to Southwest Asia from 24 December 1990 until 1 May 1991. 4. As a result, the applicant's DD Form 214, ending 8 February 1994, should be corrected by deleting the Kuwait Liberation Medal, and adding: * Kuwait Liberation Medal – Saudi Arabia * Kuwait Liberation Medal – Government of Kuwait REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 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. 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. 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 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) AR20180014174 8 1