ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 August 2022 DOCKET NUMBER: AR20210012362 APPLICANT REQUESTS: in effect, reconsideration for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to change her discharge from a bad conduct discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Administrative Decision 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 AR200900, on 23 February 2010. 2. The applicant states, in effect, her entire time in service was not dishonorable. She contends she completed honorable service from her entry date up until her court-martial conviction. During this honorable period of service, she completed Basic Combat Training, Advanced Individual Training, and her first duty assignment, before being reassigned to Korea. 3. The applicant’s DA Form 2-1 shows she enlisted in the Regular Army on 22 November 1983. 4. After completed her initial training, she was assigned to Fort Knox, KY. She subsequently completed foreign service in Korea from 26 October 1985 through 3 December 1986. 5. Before a general court-martial on 24 November 1986 and 4 December 1986, at Camp Casey, Republic of Korea, the applicant was found guilty of three specifications of distributing methamphetamine. The court sentenced her to reduction to the grade of E-1, confinement for four years, and to be separated from service with a bad conduct discharge (BCD). The sentence was adjudged on 4 December 1986. 6. On 31 January 1987, the convening authority approved the sentence and except for the bad conduct discharge ordered t executed. The record of trial was forwarded for appellate review. 7. On 19 May 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 8. General Court-Martial Order Number 453, issued by U.S. Army Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, KS, on 11 December 1987, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 9. On 15 January 1988, she was discharged. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. a. She was credited with 3 years, and 6 days of net active service this period, with lost time after normal expiration term of service from 4 December 1986 through 15 January 1988. Her service was characterized as bad conduct. b. There is no indication that the applicant completed her first full term of enlistment, or that she reenlisted. 10. In the applicant’s previous case before the board, she indicated that she had an abnormal brain study which was evidence of insanity. This case was prior to the Under Secretary of Defense for Personnel and Readiness’ new guidance in regards to liberal consideration of request to upgrade the characterization of service and clemency. Her service medical records show that she was involved in a motor vehicle accident on 9 July 1984, and that between July and October of 1984, the applicant was: * treated for a fracture, comminuted, closed, left clavicle with neurovascular involvement * treated for dislocation, anterior right sternoclavicular joint, closed reduced * treated for a scalp laceration * underwent a brain study, which found a suspicious area in the left hemisphere, possible hematoma * diagnosed with head trauma * diagnosed with post traumatic headache * underwent a bone scan, which was determined to be abnormal 11. On 23 February 2010, the Board considered her request for an upgrade but found no error or injustice. The Board denied her request for an upgrade. 12. The applicant provides VA documents which show the applicant was denied payment of disability benefits because her military service was under conditions which bar payment. Her VA Administrative Decision, dated 8 July 1993, states her discharge for the period 28 November 1983 to 15 January 1988 was considered dishonorable. She received a BCD as a result of a general court-martial. There was no evidence of insanity or other mitigating circumstances. 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 14. The Board should consider the applicant's statement and overall service record in accordance with the published equity, injustice, or clemency determination guidance. 15. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting her 15 January 1988 bad conduct discharge be upgraded. She states: “My entire time in service wasn’t dishonorable. There are no discipline records to show proof of this ... My time in Basic, AIT {advanced individual training}, first duty station was honorable or I wouldn’t been in Korea.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows she entered the regular Army on 28 September 1983 and received a bad conduct discharge on 15 January 1988 under the provisions provided in paragraph 3-11 of AR 635-200, Personnel Management – Enlisted Personnel (2 September 1987): Bad Conduct Discharge. Her separation code of JJD denotes this separation was the result of court martial. c. The request for a discharge upgrade was denied by the ABCMR on 23 February 2010 (AR200900. Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. d. No new evidence was submitted with the request for reconsideration. e. Because of the period of Service under consideration, there are no clinical encounters in AHLTA. JLV shows the applicant is not registered with the VA. f. In the prior application, the applicant mentioned “evidence of insanity.” g. At a General Court-Martial trial on 24 November and 4 December 1986, the applicant was found guilty on three specifications of distributing methamphetamine. Her sentence, adjudged on 4 December 1986, was a bad-conduct discharge, forfeiture of all pay and allowances, confinement for four years, and reduction to Private E1. h. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate her multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. It should be noted that crimes like those of which the applicant was found guilty are not mitigated under liberal consideration policies. i. In accordance with the Liberal Consideration guidance, it is the opinion of the Agency medical advisor that the applicant did not have mental health or other medical condition which would mitigate her multiple UCMJ offenses. j. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) NO (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 her characterization of service. Upon review of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official finding that the applicant did not have mental health or other medical condition which would mitigate her multiple UCMJ offenses. The Board found no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate her multiple UCMJ violations; or that would have failed the medical retention standards and been a cause for referral to the DES prior to her discharge. 2. The Board found insufficient evidence of in-service mitigating factors for the 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 applicant provided no post service accomplishments or character letters of support to weigh a clemency determination since her discharge. 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. The Board agreed the evidence does not support amending the previous Board’s decision to deny an upgrade. 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. 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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. Chapter 3 provided that an enlisted person 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 has been ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 4. AR 635-5 (Personnel Separations-Separation Documents) states for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then enter the specific periods of reenlistments. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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//