ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180014907 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an honorable 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) with 5 page statement * 27 July 1978 DD Form 214 (Report of Separation from Active Duty) * Certification of Military Service (5 February 1969 ? 7 February 1971) * 19 March 1982 DD Form 214 (Certificate of Release or Discharge from Active Duty) * request for Department of Veterans Affairs (VA) benefits with 11 attachments of alleged traumatic incidents 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 (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 is suffering from post-traumatic stress disorder and it was this condition that resulted in the misconduct that led to his court-martial. As a military policeman he witnessed a number of traumatic incidents that changed him and when he was discharged with a BCD it killed his spirit and soul. 3. The applicant was inducted into the Army of the United States on 5 February 1969 and enlisted in the Regular Army on 8 February 1971 with an immediate reenlistment on 28 July 1978. 4. The applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 8 December 1979 for dereliction of duty and communicating a threat toward two fellow Soldiers. 5. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 6. The general court-martial (GCM), on 27 January 1981 found the applicant guilty 4 counts of housebreaking; 11 counts of larceny; possession of illegal drugs; and introducing illegal drugs onto post for use, transfer, and sale. His sentence was forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 3 years, and a BCD. 7. The convening authority's approval of the GCM is not of record. 8. The United States Court of Military Review affirmed the finding and sentence on 30 September 1981. 9. GCM Order Number 104, dated 5 February 1982 notes that the GCM Order Number 6 having been affirmed and provisions of Article 71(c) UCMJ having been complied with the sentence was directed to be executed. The order noted that the applicant was on adjudged parole from the United States Disciplinary Barracks, Fort Leavenworth, Kansas at that time. The available records indicate the applicant was released on parole in January 1982. 10. The applicant was discharged on 19 March 1982. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 11-2, by reason of court-martial conviction. His DD Form 214 further shows: * discharge in the rank/grade of private/E-1 * 2 years, 5 months, 29 days net active service this period * 9 years, 5 months, 24 days prior active service * award of three Army Good Conduct Medals * characterization of service of BCD * 417 days of lost time 11. The applicant provided statements to the VA on 11 incidents wherein he "witnessed traumatic events". 12. The applicant's file was referred to the Army Review Board Agency clinical psychologist based on the applicant's request for consideration based on PTSD as a mitigating factor in his misconduct. The medical advisor outlined her review of the VA Medical records noting: a. The applicant had contended he had served in Vietnam, had been an undercover drug agent, and had been incarcerated and separated on drug related charges. These factors were not supported by the available records. b. The VA medical records show the applicant was treated for diagnoses of PTSD, dysthymic disorder, chronic alcoholism, cannabis dependency, stimulant use disorder, and major depression disorder. c. Based on a thorough review, documentation does not support the applicant's assertion he had PTSD while in-service and this contributed to his misconduct. Irrespective (of the PTSD diagnosis), breaking and entering, larceny, and introducing drugs on post for the purpose of distribution are not part of the natural progression or normal sequel of PTSD; PTSD does not excuse these crimes. In summary, there is a lack of evidence the applicant had a psychiatric conditions at the time of his misconduct; however a psychiatric condition would not mitigate these offenses. 13. A copy of the advisory opinion was forwarded to the applicant with no response. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and his awards and multiple reenlistments. The Board considered the applicant’s PTSD claim, his record of VA treatment and the conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigation for his misconduct and found the applicant provided no evidence of post-service achievements or letters of reference for consideration by the Board. The Board concurred with the advising official and found no evidence of PTSD in service or other support for liberal consideration, even with the post-service PTSD diagnosis, based on the nature of his misconduct. The Board determined, based on a preponderance of evidence, that the character of service the applicant received upon discharge was not in error or unjust. 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 not warranted. 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: With the exception of the corrections stated in the Administrative Note(s) that follow, 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. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his 19 March 1982 DD Form 214, for the period ending, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 6902053 UNTIL 780727 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 11-2, as then in effect, provided that a Soldier given a BCD/DD pursuant to an approved sentence of a general or special court-martial will be discharged under this paragraph. The appellate review must 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.