ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:    BOARD DATE: 25 March 2021 DOCKET NUMBER: AR20200009447 
APPLICANT REQUESTS: upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
Department of Veterans Affairs (VA) Health Records 


FACTS: 
1. 
The applicant states he requests correction of this injustice due to his mental health condition. He provides his VA health records and progress notes. 

2. 
The applicant enlisted in the Regular Army on 28 September 2015 and he held military occupational specialty 92W (Water Treatment Specialist). 

3. 
On 27 April 2018, at Fort Hood, TX, consistent with his pleas, the applicant was convicted by a general court-martial of: 


• one specification of stealing another Soldier's Common Access Card, military property, of some value, the property of the Department of Defense • one specification with intent to deceive, making to Private First Class P, a military police officer, a false official statement • one specification of willfully disobeying a lawful command from a superior commissioned officer to remain at Fort Hood 
• one specification of being disrespectful in language and deportment towards a noncommissioned officer who was then in the execution of his office, by saying to him "Go f---yourself," or words to that effect & by displaying his middle finger to him 
• one specification of willfully and wrongfully damaging by breaking the driver side rear view mirror, of a white sedan, the amount of said damage being in the sum of less than $500.00, the property of Specialist D 
• one specification of willfully and wrongfully damaging by breaking the windshield and driver side rear view mirror, of a white sedan, the amount of said damage being in the sum of less than $500.00, the property of SGT J • one specification of willfully and wrongfully damaging by breaking the windshield and driver side rear view mirror, of a white sedan, the amount of said damage being in the sum of less than $500.00, the property of SPC D 
4. 
The court sentenced him to reduction to the lowest enlisted grade of private/E-1, forfeiture of $937.00 pay per month for 1 month, confinement for 91 days, and to be discharged from the service with a bad conduct discharge. 

5. 
On 3 October 2018, the convening authority approved the sentence as provided and except for the bad conduct discharge, ordered the sentence executed. The Record of Trial was forwarded to The Judge Advocate General of the Army for appellate review. 

6. 
The appellate authority (United States Army Court of Criminal Appeals) affirmed the findings of guilty and the sentence and the United States Court of Appeals for the Armed Forces denied consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals. 

7. 
Headquarters, U.S. Army Garrison Fort Sill, OK published Orders 238-1322 ordering his discharge from the Army effective 30 August 2009. 

8. 
He was discharged on 30 August 2019.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, with a bad conduct discharge. He completed 3 years, 8 months, and 2 days of active service, and he had lost time from 26 January 2018 to 26 April 2018. 

9. 
He did not qualify to have his discharge reviewed by the Army Discharge Review Board (ADRB). By regulation (AR 15-180 (Army Discharge Review Board (ADRB)), service members convicted by a general court-martial are not eligible to apply to the ADRB, and may apply to the ABCMR. 

10. 
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. 

11. 
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. 


MEDICAL REVIEW: 
1. 
The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Bad Conduct discharge was due to mental health difficulties he developed while on active duty. 

2. 
The Agency psychologist was asked by the ABCMR to review this request. 

3. 
Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) and the military electronic medical record (AHLTA) were also reviewed. No hard copy military medical records or civilian medical documentation was provided for review. 

4. 
Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 29 Jul 2015 and subsequently in the Regular Army on 28 Sep 2015. During his service he was awarded the Army Achievement Medal and the National Defense Service Medal. A General Court-Martial Order, dated 03 Oct 2018, found him guilty for “stealing Specialist…Common Access Card” (05 Jul 2017), “intent to deceive” an MP regarding car ownership (02 Nov 2017), disobeying an order not to leave Fort Hood (07 Nov 2017), “disrespectful in language” to an NCO and “breaking the windshield” of a vehicle (25 Jan 2018). He was found not guilty of “discharging a firearm” in his First Sergeant’s office. He received a Bad Conduct discharge on 30 Aug 2019 with Narrative Reason, Court-Martial (Other). 

5. 
The military electronic medical record (AHLTA) contained behavioral health related notes which indicated he had “significant difficulty trusting people…extensive history of anger management difficulties going back to elementary school” (Nov 2017). Prior to going through ASAP, he had reported drinking a fifth a day. He was admitted to the inpatient psychiatric unit, AMC Darnell Hood, 03 May 2018 for suicidal ideation, having engaged in Russian Roulette with a revolver. The Problem List included Alcohol Dependence Uncomplicated, Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and Insomnia Unspecified. 

6. 
The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). He reported paranoia and hypervigilance. A behavioral health note, dated 11 Jul 2018, indicated “symptoms stem from incarceration and stress while serving in the Army…using alcohol as a means of coping…reported he has cut his hand as a means releasing stress.” Alcohol abuse was noted since 2015.  In another behavioral health note, it was noted, “he feels there are cameras in many rooms watching him…uses alcohol to reduce sx’s…engaged in SUD therapy.” The Problem List included Major Depressive Disorder, Recurrent, Severe with Psychotic Features 

(04 Sep 2018) and Alcohol Dependence Uncomplicated (04 Sep 2018). 

7. 
Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has partially mitigating Behavioral Health conditions of Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and psychotic related symptoms. This applies particularly to disobeying orders, disrespectful behavior toward superiors and property destruction. As there is an association between Adjustment Disorder with Mixed Disturbance of Emotions and Conduct/psychotic related symptoms, and abuse of alcohol to self-medicate symptoms, there is a nexus between his adjustment disorder/psychotic related symptoms and the pattern of substance abusing behavior the applicant demonstrated. In addition, as there is an association between his Adjustment Disorder diagnosis/psychotic related symptoms and resistant, negative attitudes toward authority figures, there is a nexus between his adjustment disorder/psychotic related symptoms and disrespectful, hostile behavior he demonstrated. However, a stolen CAC card from another soldier and deceptive statements to an MP are not part of the natural history or sequelae of Adjustment Disorder with Mixed Disturbance of Emotions and Conduct/psychotic related symptoms and, as such, is not mitigated under Liberal Consideration. A discharge upgrade is recommended. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge upgrade requests.  The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the medical records and the review and conclusions of the advising official. The Board considered the medical advisory finding several nexuses between his adjustment disorder/psychotic related symptoms and the pattern of substance abusing behavior the applicant demonstrated. The Board further considered that the medical opinion recommended found the applicant’s actions of stealing and false statements were not normal parts of behavioral health. The Board found insufficient evidence of mitigation for the entirety of the applicant’s misconduct. The Board did not find applicant provided evidence of post-service achievements or letters of reference sufficient to support a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received was not in error or unjust. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX 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. 

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. 
REFERENCES: 
1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. 


2. 
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. 

3. 
 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. 


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