IN THE CASE OF: BOARD DATE: 17 November 2021 DOCKET NUMBER: AR20210006662 APPLICANT REQUESTS: reconsideration of his previous request that his character of service, be upgraded from a bad conduct discharge (BCD) to a general, under honorable conditions 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) * Medical Records FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR on 24 July 2012. 2. The applicant states all of the criminal charges he faced during the court martial stemmed from his undiagnosed and untreated mental health conditions at the time of his military service and discharge. He has since been diagnosed with Post Traumatic Stress Disorder (PTSD) and Alcohol Dependence. Following his discharge, he was homeless, unemployed and struggling with untreated mental health conditions. He did not have a copy of his DD Form 214 until 14 June 2019. 3. The applicant provides his medical records regarding his PTSD diagnosis. 4. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 27 August 2002 for a period of 3 years. He completed training and was awarded military occupational specialty 19K (M1 Armor Crewman). b. He served in Kuwait/Iraqi from 21 January 2003 through 10 August 2003. c. Orders 204-370, dated 22 July 2004, Headquarters, 3rd Infantry Division, Fort Stewart, GA, assigned him to the US Army Personnel Control Facility, Fort Knox, KY, effective on or about 19 July 2004. d. On 18 November 2004, he was released from confinement upon completion of sentence. e. On 24 January 2005, he was convicted pursuant to his pleas by a special court martial of following specifications on/for: * 10 October 2003-willfully damaging a fellow Soldier’s vehicle * 4 January 2004-willfully damaging a military police vehicle * 4 January 2004- unlawfully striking a Soldier * 5 January 2004-being drunk on duty * 24 February 2004-wrongfully appropriating a Military Star Card f. The court sentenced him to a bad conduct discharge, reduction to private/E-1, forfeiture of $795.00 pay per month for seven months, and confinement for seven months. g. The convening authority approved the findings and sentence except for the part of the sentence extending to BCD would be duly executed but, the execution of that part of the sentence extending to confinement in excess of five months was suspended for five months. h. On 24 January 2005, the sentence was approved. The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. i. On 31 March 2006, the United States Court of Military Appeals affirmed the finding of guilty and affirmed the sentence. j. Special Court-Martial Order 212, dated 14 September 2006, Headquarters, U.S. Army Armor Center and School, shows the sentence was affirmed. The sentence to confinement had been served. The provisions of Article 71(c) having been complied with, the bad conduct discharge would be executed. That portion of the sentence pertaining to confinement had been served, and the bad conduct discharge was ordered executed. k. Orders 029-0162, dated 29 January 2007, ordered him to the transition point for transition process and discharged him, effective 31 January 2007. l. He was discharged on 31 January 2007. His DD Form 214 shows he was discharged in the rank/grade of PVT/E-1 as a result of court-martial conviction-other, in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3- court martial-other, with a characterization of service as Bad Conduct Discharge. He completed 4 years, 1 month and 5 days of active service, with lost time from 19 July 2004 to 17 November 2004. It also shows: * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized: Army Commendation Medal, USA/USAir Force Presidential Unit Citation, National Defense Service Medal and Army Service Ribbon * Block 24 (Character of Service) Bad Conduct m. On 26 October 2010, by letter, Army Discharge Review Board (ADRB) determined that he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge. n. On 30 July 2012, by letter, ABCMR notified the applicant that a partial relief was granted and he was issued a DD Form 215 (Correction to DD Form 214) that shows his service in Kuwait/Iraq from 20030121 to 20030810. However, his request for an upgrade of his character of service from a bad conduct discharge to a general, under honorable discharge was denied. The Board concluded trial by court martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 5. 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. 6. By regulation 635-5 (Personnel Separations-Separation Documents) prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. For Block 24(Character of Service)- characterization or description of service is determined by directives authorizing separation. Proper completion of this block is vital since it affects the Soldier’s eligibility for Post service benefits. 7. 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. 8. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service military medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of service. His hardcopy military medical records were not available for review. A review of his civilian medical records indicates he was evaluated on 4 Jun 2091 for admission into a recovery treatment program. He reported a history of alcohol and cocaine use since his discharge. His only sober period was while incarcerated for several years in 2013 for third degree robbery. He was diagnosed with Cocaine Abuse, PTSD, and Alcohol Dependence. A review of JLV indicates the applicant has called the VA crisis hotline on several occasions primarily regarding housing needs. He has not been evaluated or treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not retention standards at the time of his discharge. Under liberal guidance, PTSD is considered a mitigating factor for drunk on duty. PTSD is not a mitigating factor for willfully damaging vehicles, striking a Soldier, nor wrongfully appropriating a Military Star Card. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered documents provided by the applicant and the review and conclusions of the advising official. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board concurred with the medical advisory opinion finding under liberal guidance, PTSD is considered a mitigating factor for drunk on duty. PTSD is not a mitigating factor to overcome his other misconduct. 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. The Board found insufficient evidence of in-service mitigating factors for the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR on 24 July 2012. 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 (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy 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 3-11A 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. 2. Army Regulation 635-5 (Personnel Separations-Separation Documents) prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established the standardized policy for the preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The information entered thereon reflects the conditions as they existed at the time of separation. It states for: Block 24 (Character of Service) characterization or description of service is determined by directives authorizing separation. Proper completion of this block is vital since it affects the Soldier’s eligibility for post-service benefits. Only six standard characterizations in this block are authorized: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable and uncharacterized. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006662 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1