IN THE CASE OF:  

		BOARD DATE:  14 December 2022

		DOCKET NUMBER: AR20190008058


APPLICANT REQUESTS:  

*	upgrade of his bad conduct discharge to honorable
*	change his Separation Code to Convenience of the Government 
*	change his Reentry (RE) Code from RE-4 to RE-1.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge) 
*	Legal Brief (counsel)
*	Applicant’s Affidavit
*	Delayed Entry Program Enlistment Contract 
*	Regular Army Enlistment Contract 
*	Immunization Record
*	Special Court-martial Number 7
*	DA Form 20 (Enlisted Qualification Record)
*	Court-Martial Record of Trial 
*	Stipulation of Expected Testimony 
*	Letters/Statements of Support 

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, 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 there is a material error in his discharge. The discharge was 
unfair at the time and procedurally defective. The discharge is unfair now and has 
served its purpose. He was court-martialed for drug possession after a search of his 
room. In his affidavit (entire statement is available to the Board for review): 

	a.  They were in their own separate building at one time, and they moved them to 
another building to a four-man room. He was in the room with two other guys, one of 
them moved off campus, and he has a deposition from him, he was hooked on heroin, 
but he moved off campus and he kind of left some of his paraphernalia behind. There 
was a new guy in the room, but somehow that room became a drug room, everyone 
smoked their dope and did drugs inside the room. And how the drugs got there, he does 
not know his name. But he was like the drug king pin, and he had stashed his stuff there 
and moved off grounds as well. They told him it was there, and when he got off work, he 
went over and looked at it and put it back. He did not smoke any of it or touch it. When 
he woke up in the morning, they asked what he got, and he showed it to the guy next to 
him, and he told the special investigator that he had hash under his bed, the water-bed, 
and they got a search warrant for the wrong room, but when they found out they had the 
wrong room they decided if he found out about it he would destroy the evidence. 
Apparently, there was a community refrigerator that had drugs in it, and they had been 
taken the day before and given them to the MPs.

	b.  They did a search warrant and they confiscated everything out of his room, 
including the hash, and they interrogated him for hours, and he told them that he 
smoked dope, and after four or five hours they let him go. A week or two weeks later, he 
went and saw a lawyer, and he told him not to worry about it because it was a bad 
search warrant. He talked to him again and told him everything, then he went to a pre-
trial. From the pretrial, he told his captain what had happened, and they said they 
already know everything, and the company commander wants to make an example out 
of him, and he was going to go to trial. They moved him back that day to Stuttgart 
hospital, for his protection because of his case, and they won't talk to him about this, but 
they told him they demoted him and changed his MOS and gave him community service 
and rehabilitation and sent him to another base. So, he got his punishment. 

3.  Counsel provides a background of the applicant’s enlistment, service in Vietnam, 
court-martial, and resultant confinement. Counsel states the experiences with working 
an ambulance were traumatic for the applicant. The grind of what he saw as a medic 
and ambulance driver was very disturbing. He began to have symptoms of Post-
Traumatic Stress Disorder (PTSD). As part of the experience, he would self-medicate 
and use hash and marijuana. Although this was not the proper way to deal with his 
behavioral health issues, it was a coping mechanism. Counsel argues (entire brief is 
enclosed for the Boards review): 

*	there is a procedural defect in this case. The applicant was convicted of two 
different offenses. These offenses all were similar in nature and were charged 
multiplicious by the Government
*	the Bad Conduct Discharge was substantively unfair at the time of applicant’s 
separation. 
*	the Bad Conduct discharge does not serve a proper purpose. The applicant has 
successfully completed his confinement. He should be allowed to apply for VA 
benefits. All his time, separate these single incidents, have been honorable 
service.
*	the Bad Conduct discharge does not serve a further purpose. The events that 
took place are no longer relevant to his life and he has lived since in as 
responsible a manner
*	the entirety of the applicant's military career is reflected in his personnel records, 
DD Form 214, and personal affidavit. Reviewing his military record, he gave as 
much as he could to the US Army. 
*	the applicant's compelling affidavit should also be considered

4.  The applicant enlisted in the U.S. Army Reserve under the Delayed Entry Program 
(DEP) on 5 November 1971. He was discharged from the DEP and enlisted in the 
Regular Army on 10 January 1972. 

5.  He completed training and was awarded military occupational specialty 91B (Medical 
Specialist). He served in Germany from 26 June 1972 to 7 October 1973, assigned to 
757th Medical Detachment.  

6.  On 8 October 1973, he was arraigned at a special court-martial that convened at VII 
Corps in Germany on the Charge and its two specifications: 

*	one specification of wrongfully and unlawfully possessing 1000 grams of hashish 
on or about 19 April 1973
*	one specification of wrongfully and unlawfully possessing 1 gram more or less of 
amphetamines on or about 19 April 1973 an

7.  He pled not guilty to the charge and its specifications. The court found him guilty of a 
modified specification (1), wrongfully and unlawfully possessing 990 grams of hashish 
on or about 19 April 1973. The court sentenced him to reduction to the lowest enlisted 
grade of E-1, forfeiture of $215 per month for 6 months, confinement for 6 months and a 
bad conduct discharge. 

8.  On 11 January 1974, the convening authority approved the sentence and except for 
the bad conduct discharge ordered it executed (the forfeiture of pay shall apply to pay 
becoming due on or after the date of this action). The record of trial was forwarded to 
appellate authority for appellate review. 

9.  On 23 August 1974, the U.S. Army Court of Military Review affirmed the finding of 
guilty and the sentence. 

10.  On 18 December 1974, the U.S. Court of Military Appeals denied his petition for a 
grant of review. 

11.  Special Court-Martial Order Number 799, issued by Headquarters, U.S. Disciplinary 
Barracks, Fort Leavenworth on 23 December 1974 states the sentence has been 
affirmed pursuant to Article 66. The provisions of Article 71c-having been complied with; 
the sentence would be duly executed. 

12.  The applicant was discharged on 20 January 1975. His DD Form 214 shows he 
was discharged in the rank/grade of private/E-1 as a result of court-martial conviction 
(reason for discharge) in accordance with Army Regulation (AR) 635-200 (Active Duty 
Enlisted Administrative Separations), chapter 11, with an under other than honorable 
conditions characterization of service, and he was issued a Bad Conduct Discharge 
Certificate. He completed 2 years, 7 months, and 19 days of active service, with 142 
days of lost time (8 October 1973 to 26 February 1974) and 74 days of excess leave. 
His DD Form 214 also shows: 

*	He was assigned Separation Code JJD (court-martial) and RE Code 4
*	He was awarded or authorized: National Defense Service Medal and Marksman 
Marksmanship Qualification Badge with Rifle Bar. 

13.  On 20 November 1978, the Army Discharge Review Board (ADRB) reviewed his 
discharge but found it proper and equitable. The ADRB denied his request for an 
upgrade of his discharge. 

14.  The applicant provides: 

	a.  A letter of support from Mr. FB who opines that the applicant has always been 
someone he can count on for sound advice, either verbally or just by observation. 
Having the applicant in his life to show by example how to behave as a friend, brother, 
father, son, has been invaluable. His sister has not "had" to work a day to support 
herself or her family since marrying the applicant. He has supported her and their 
children, and grandchildren by himself with no lapses in employment, food, or shelter, 
no kids in jail, no kids on drugs, his sons are all employed, purchasing homes, and 
supporting their own children and wives just like he did, and his father before him did. 
He has known the applicant for 50 years now and he has never seen or heard anything 
from him that would bring shame or dishonor to himself, his family, or his country. 
(Entire statement is available for the Boards review.) 

	b.  Statement of Support from Mr. MH who states he knew the applicant since their 
days in Germany. Over the decades since those days, he has thought of him and his 
fate from time to time. Recently, he reconnected with him through social media and then 
by telephone. When he asked him to testify, he unhesitatingly agreed because he 
always thought that he had been treated with inappropriate harshness. He cannot testify 
to his personal conduct since he last saw him over 45 years ago. However, he feels 
certain that upon examination of this man’s life, one will find his contribution to our 
society as nothing but positive. It is his hope that the Board will deem it appropriate to 
elevate the status of his discharge.

	c.  Statement of support from Mr. DLB who has worked as a registered dental 
hygienist for the past 38 years. He states he has known the applicant since grammar 
school and has been friends ever since. They have shared a lot over the past years, 
watching or careers and family lives develop. He married his high school sweetheart, 
has 4 children and 12 grandchildren. The family is very close. After his military service 
the applicant went to college to become a Psychiatric Technician and has work 
honorably for 32 years for the State of California at Patton State Psychiatric Hospital 
until he retired. He is responsible for his younger brother’s care who has a mental 
disability. He has made very wise property investments and has become financially 
secure. He is familiar with the allegations in this case.

15.  By regulation (AR 635-200), a Soldier will be given a bad conduct discharge 
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.

16.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

17.  MEDICAL REVIEW:

    a.  Applicant is applying to the ABCMR requesting a discharge upgrade asserting 
PTSD related to being a medic and ambulance driver. The Army Review Boards 
Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation 
reviewed included the applicant’s completed DD Form 149 and supporting documents, 
his ABCMR Record of Proceedings (ROP), and his separation military documentation.

    b.  Due to the period of service, no active duty electronic medical records (AHLTA) 
were available for review and no hard copy medical documentation from the time of 
service was submitted for review.
    c.  Applicant is not service connected and there are no VA electronic medical records 
(JLV) available for review.
    d.  After review of all available information, applicant self-asserts having PTSD 
related to being a medic and ambulance driver while stationed in Germany. Given the 
nexus between PTSD and self-medicating with substances, the Board should consider 
the applicant’s assertion of PTSD since it would mitigate possession of illegal 
substances related to self-medication. However, there is insufficient medical 
documentation to support applicant’s assertion of PTSD. There is no evidence of any in 
service BH conditions and the applicant is not diagnosed or service connected by the 
VA for any BH conditions. Furthermore, the amount of hashish that applicant was 
convicted of possessing is suggestive of drug distribution, which is not mitigated by 
PTSD. Specifically, drug distribution entails a purposeful, conscious and thought-out 
series of steps performed over time in order to obtain a goal which is uncharacteristic of 
PTSD.
KURTA FACTORS
Did the applicant have a condition or experience that may excuse or mitigate the 
discharge?
Yes. Applicant self-asserts PTSD.
Did the condition exist or experience occur during military service?
Yes. The applicant self-asserts having PTSD related to being a medic and 
ambulance driver while stationed in Germany.
Does the condition or experience actually excuse or mitigate the discharge?
Partial mitigation. The applicant self-asserts having PTSD related to being a medic 
and ambulance driver while stationed in Germany. Given the nexus between PTSD 
and self-medicating with substances, the Board should consider the applicant’s 
assertion of PTSD since it would mitigate possession of illegal substances related to 
self-medication. However, there is insufficient medical documentation to support 
applicant’s assertion of PTSD. There is no evidence of any in service BH conditions 
and the applicant is not diagnosed or service connected by the VA for any BH 
conditions. Furthermore, the amount of hashish that applicant was convicted of 
possessing is suggestive of drug distribution, which is not mitigated by PTSD. 
Specifically, drug distribution entails a purposeful, conscious, and thought-out series 
of steps performed over time in order to obtain a goal which is uncharacteristic of 
PTSD.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted. The Board carefully considered the applicant's record of 
service, documents submitted in support of the petition and executed a comprehensive 
and standard review based on law, policy and regulation, and published Department of 
Defense guidance for liberal and clemency determinations requests for upgrade of his 
characterization of service. Upon review of the applicant’s petition and available military 
records, the Board concurred with the advising official finding insufficient medical 
documentation to support applicant’s assertion of PTSD. There is no evidence of any in 
service BH conditions and the applicant is not diagnosed, or service connected by the 
VA for any BH conditions. The Board agreed the amount of hashish that the applicant 
was convicted of possessing is suggestive of drug distribution, which is not mitigated by 
PTSD. Specifically, drug distribution entails a purposeful, conscious, and thought-out 
series of steps performed over time in order to obtain a goal which is uncharacteristic of 
PTSD. The ABCMR 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. 

2.  The Board found insufficient evidence of in-service mitigating factors for the 
misconduct to weigh a clemency determination. The Board recognized the letters of 
support provided by the applicant that attested to his character and his community 
service since his discharge. However, based on a preponderance of evidence, the 
Board determined that the character of service, separation code, and reentry eligibility 
code the applicant received upon separation were not in error or unjust.

3.  The applicant's request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision. As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.


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:

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.
		  
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.  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 ABCMR determines it 
would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides 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.  

	c.  Paragraph 3-7c states 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, security reasons, or for the good of 
service in selected circumstances.

	d.  Paragraph 3-11 states a member will be given a bad conduct discharge 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. 

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military 
Department may correct any military record of the Secretary's Department when the 
Secretary considers it necessary to correct an error or remove an injustice.  With 
respect to records of courts-martial and related administrative records pertaining to 
court-martial cases tried or reviewed under the Uniform Code of Military Justice, action 
to correct any military record of the Secretary's Department may extend only to 
correction of a record to reflect actions taken by reviewing authorities under the Uniform 
Code of Military Justice or action on the sentence of a court-martial for purposes of 
clemency.  Such corrections shall be made by the Secretary acting through boards of 
civilians of the executive part of that Military Department.

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 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.

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; TBI; 
sexual assault; sexual harassment.  Boards were directed 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 that misconduct which 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.  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.

8.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) be provided with a copy of any correspondence and communications (including 
summaries of verbal communications) to or from the Agency with anyone outside the 
Agency that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute. ARBA medical advisory opinions and reviews are authored by 
ARBA civilian and military medical and behavioral health professionals and are 
therefore internal agency work product. Accordingly, ARBA does not routinely provide 
copies of ARBA Medical Office recommendations, opinions (including advisory 
opinions), and reviews to Army Board for Correction of Military Records applicants 
(and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190008058


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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