IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20190015119 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions or to an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 9 September 2019. 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, in effect, his discharge was improper. He was African- American. A single incident occurred while he was abusing drugs and alcohol as a means of self-medicating, due to his post-traumatic stress disorder. 3. The applicant provides a written statement on his DD Form 149 application. 4. A review of the applicant's service record shows: a. On 29 September 1973, he enlisted in the Regular Army for a period of 3 years at age 21. He completed Basic Combat Training, he Advanced Individual Training, and he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist). b. On 30 November 1973, he was promoted to private/E-2 and on 1 February 1974, he was promoted to private first class/E-3. c. Special Court-Martial Order (SCMO) Number 4, issued by Headquarters (HQ), 194th Armored Brigade, Fort Knox on 10 February 1975, shows after pleading not guilty to two specifications of violation of Article 92 of the Uniform Code of Military Justice (UCMJ), he was found guilty of failure to register a .25 caliber pistol, purchased on 2 November 1974; and of failing to obey a lawful order issued by his Battery Commander, Captain on 7 November 1974, to bring a .25 caliber pistol to his office. He was sentenced to forfeit $200.00 pay per month for 2 months, to be restricted to the limits of the company area, and to perform extra duty for 45 days. He was sentenced on 10 December 1974. d. Two DA Form 4187 (Personnel Action), 28 January 1975 and 30 January 1975, show he was in U.S. Ireland Army Hospital from 24 January 1975 to 29 January 1975. e. General Court-Martial Order (GCMO) Number 56, issued by HQ, U.S. Armor Center and Fort Knox, 3 July 1975, shows he was arraigned and tried on 6 June 1975 for three specifications of violation of Article 92 of the UCMJ; unlawful possession of about 60.88 grams of marijuana at Fort Knox on or about 6 March 1975; unlawful possession of 60 tablets and 97 dosages containing lysergic acid diethylamide (LSD), a controlled substance at Fort Knox, on or about 6 March 1973; unlawfully selling two tablets of LSD, on or about 6 March 1973; and one specification of violation of Article 134 of the UCMJ, by unlawfully having concealed upon him two loaded .25 caliber pistols. After pleading guilty to all charges and specifications, he was found guilty of all the charges and specifications and sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 18 months, to forfeit $170.00 pay per month for 18 months, and to be reduced to the lowest enlisted grade. The sentence was adjudged on 9 June 1975. f. GCMO Number 1064 issued by HQ, U.S. Disciplinary Barracks (USDB), Fort Leavenworth, shows the record of trial was forwarded to the U.S. Army Court of Military Review for review, affirmed the findings and the sentence adjudged on 9 June 1975, confirmed the provisions of Article 71(c) were complied with, and duly executed the sentence. He was confined in the USDB, Fort Leavenworth. g. On 5 January 1976, HQ, USDB, Fort Leavenworth issued Special Orders Number 2, released him from confinement and assigning his date of discharge as 13 January 1976, under authority of Army Regulation 635-200, with a characterization of under other than honorable conditions, and issuance of DD Form 259A (Bad Conduct Discharge). h. On 13 January 1976, he was discharged. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 11-2, with separation program designator JJD, and a character of service of under conditions other than honorable. He completed 1 year, 5 months and 2 days of net service during this period and was awarded the National Defense Service Medal. His grade/pay grade was shown as private/E-1. It further shows he had 313 days of time lost from 7 March 1975 to 13 January 1976. i. There is no evidence of record showing he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 5. 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. 6. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation is void of a behavioral health diagnosis and the applicant did not submit records in support of the asserted PTSD to include the trauma. While liberal consideration was applied, documentation is insufficient to make a determination. Accordingly, there is no mitigation at this time. b. The applicant was discharged on 13 January 1976 under AR 635-200, Para 11-2, JJD, Court Martial, with an Under Other than Honorable characterization. The basis for separation was the applicant had a Court-Martial in July 1975 and plead Guilty to unlawful possession of marijuana, unlawful possession of LSD, and unlawfully selling of LSD, and unlawfully having a concealed two loaded .25 caliber pistols in March 1975. A prior February 1975 Court-Martial found the applicant guilty of failing to register a .25 caliber pistol and failing to obey the Command’s order to bring the .25 caliber pistol to the office. The applicant is requesting a characterization upgrade asserting self- medication for PTSD; the applicant did not indicate the trauma. c. Due to the period of service, electronic medical records are void. The separation packet contains Personnel Actions indicating the applicant was hospitalized from 24 to 29 January 1975. There are no medical records or accompanying information indicating what condition the applicant was being treated for, i.e., physical or mental. d. The applicant is not service connected and VA records are void of contact. e. The applicant did not submit medical records to support the asserted PTSD. f. Kurta Questions (1) Does the applicant have a condition or experience that may excuse or mitigate the discharge? (a) YES. Based solely on the applicant’s assertion of PTSD. (2) Did the condition exist or experience occur during military service? (a) YES. Based solely on the applicant’s assertion of PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) UNKNOWN. Documentation is void of a behavioral health diagnosis and the applicant did not submit medical records in support of his assertion to include the related trauma. (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the criminal misconduct involving the distribution and sale of illegal drugs, thus bringing others into his criminal environment, as well as the unlawful possession of a firearm, the Board concluded at any mitigation for the misconduct was outweighed by the misconduct itself. As a result, the Board recommended denying the requested relief. 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. 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. 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 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. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, Title 10, U.S. Code, section 1552, this Board 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. The ABCMR does not have authority to set aside a conviction by a court-martial. 4. 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. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time established policy and prescribed procedures for the elimination of enlisted personnel for a variety of reasons. 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. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. d. Chapter 11 provided that a member would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 6. 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 Nonjudicial 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. 7. Army Regulation 635-5-1, in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty. The SPD JJD corresponded to the authority AR 635-200, Chapter 11 and the reason "As the Result of Court-Martial, Other." 8. 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. 9. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 10. 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 based on 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. 11. 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) AR20190015119 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1