IN THE CASE OF: BOARD DATE: 14 June 2022 DOCKET NUMBER: AR20210014237 APPLICANT REQUESTS: an upgrade of his bad conduct discharge (BCD) to at least a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Although the applicant indicates he attached the following evidence to his application, there were no documents present 21-4138, 21-0781a, 21-4142a FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 should be upgraded due to the circumstances that caused his conduct. He contends he suffered a physical assault which, in turn, pushed him to commit the crimes that resulted in his bad conduct. He indicated on his DD Form 149 that Post-Traumatic Stress Disorder (PTSD) and other Mental Health conditions are related to his request. 3. On 12 November 1999, the applicant enlisted in the Regular Army for a period of 3 years. He was assigned to a unit located at Fort Stewart, GA. 4. General Court-Martial Order (GCMO) Number 23 issued by on 6 September 2002, shows the applicant appeared before a General Court-Martial convened by Commander, The Charges, Specifications, Pleas and Findings were as follows: a. Charge I. Article 108. Plea: Guilty. Finding: Guilty. Specification: Without proper authority, willfully damaged, by slamming his fists and a firearm into Specialist (SPC) W.F.'s barracks room door, military property of the United States, the amount of said damage being in excess of $100.00, on or about 11 August 2001. Plea: Guilty, except the words "willfully'' substituting the words "through neglect"; except the words "in excess of $100.00" substituting the words "$100.00 or less". To the excepted words, Not Guilty. To the substituted words, Guilty. Finding: Not Guilty, but Guilty of the lesser included offense of damaging military property of $100.00 or less through neglect. b. Charge II. Article 109. Plea: Not Guilty. Finding: Not Guilty. Specification: Willfully damaged by backing Private First Class (PFC) M.W. 's vehicle into a guard rail, the amount of said damage being in excess of $100.00, the property of PFC M.W., on or about 11 August 2001. Plea: Not Guilty. Finding: Not Guilty. c. Charge III. Article 111. Plea: Guilty. Finding: Guilty. (1) Specification 1: Physically controlled a vehicle, to wit: a passenger car while drunk, on or about 11 August 2001. Plea: Guilty. Finding: Guilty. (2) Specification 2: Physically controlled a vehicle, to wit: a passenger car, in a reckless manner by driving while drunk, at a high rate of speed, failing to stop for a stop sign, and backing the vehicle into a guard rail, on or about 11 August 2001. Plea: Not Guilty. Finding: Not Guilty. d. Charge IV. Article 116. Plea: Not Guilty. Finding: Not Guilty. Specification: Caused a breach of the peace by wrongfully discharging a firearm in a barracks parking lot, on or about 11 August 2001. Plea: Not Guilty. Finding: Not Guilty. e. Charge V. Article 128. Plea: Guilty. Finding: Guilty. Specification: Assaulted Private (PVT) G.P., by unlawfully sticking the barrel of a firearm into the stomach and under the chin of PVT G.P., on or about 11 August 2001. Plea: Guilty. Finding: Guilty. f. Charge VI. Article 134. Plea: Not Guilty. Finding: Not Guilty. (1) Specification 1: Wrongfully and recklessly engaged in conduct, to wit: he discharged a loaded firearm in the 632d Maintenance Company barracks parking lot toward the barracks, and that the accused's conduct was likely to cause death or serious bodily harm to the inhabitants of the barracks, on or about 11 August 2001. Plea: Not Guilty. Finding: Not Guilty. (2) Specification 2: Wrongfully communicated to PFC W.F., a threat of injury by saying, ''I'm going to kill you," or words to that effect, on or about 11 August 2001. Plea: Not Guilty. Finding: Not Guilty. g. Additional Charge I. Article 80. Plea: Not Guilty to Article 80, attempted murder, but Guilty to the lesser included offense of Article 128, assault with a dangerous weapon. Finding: Not Guilty, but Guilty of a violation of Article 128 of the Uniform Code of Military Justice. Specification: Attempted to murder PFC W.F., by means of shooting him with a handgun, on or about 11 August 2001. Plea: Guilty, except the words "attempt to murder" substituting the words "commit an assault upon"; except the words "shooting at him with a handgun" substituting the words "pointing at him and discharging a dangerous weapon, to wit, a loaded firearm." To the excepted words, Not Guilty. To the substituted words, Guilty. Finding: Guilty, except the words "attempt to murder" substituting the words "commit an assault upon"; except the words "shooting at him with a handgun" substituting the words "pointing at him and discharging a dangerous weapon, to wit, a loaded firearm." Of the excepted words, Not Guilty. Of the substituted words, Guilty. h. Additional Charge II. Article 128. Plea: Guilty. Finding: Guilty. Specification: Committed an assault upon Staff Sergeant (SSG) J. by pointing at the face of SSG J. a handgun and telling SSG J. that he had better run, on or about 11 August 2001. Plea: Guilty, except the words "and telling SSG J. that he had better run". To the excepted words, Not Guilty. Finding: Guilty, except the words "and telling SSG J. that he had better run". Of the excepted words, Not Guilty. 5. The court sentenced him to reduction in rank/grade from PFC/E-3 to PV1/E-1; 42 months of confinement; and to be discharged from service with a BCD. The sentence was adjudged on 29 January 2002. The sentence was approved and, except for that portion of the sentence extending to a BCD, ordered to be executed. He was credited with 172 days of confinement against the sentence to confinement. 6. GCMO Number 3 issued by Headquarters, United States Disciplinary Barracks, United States Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, on 8 May 2014 shows the sentence to BCD, confinement for 42 months, and reduction to PV1/E-1, adjudged on 29 January 2002, as promulgated in the GCMO Number 23 issued by Headquarters, Fort Stewart, GA on 6 September 2002, had been affirmed and that portion of the sentence pertaining to confinement had been served and the remainder of the sentence pertaining to the BCD would be duly executed. 7. On 14 June 2004, orders discharged the applicant from the Regular Army, effective 20 May 2004. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as a result of court-martial with a characterization of service of Bad Conduct. He was credited with completion of 1 year, 8 months, and 15 days of his 3-year obligation. He was credited with lost time due to confinement from 11 August 2001 to 20 May 2004. Additionally, his DD Form 214 shows he was awarded or authorized the Army Service Ribbon. 8. The applicant’s Army Military Human Resource Record is void of any indication that he underwent a preseparation mental evaluation or medical examination or that he was diagnosed with PTSD or any other behavioral health condition during his period of service. 9. On 30 March 2022, a representative of the Case Management Division, Army Review Boards Agency (ARBA) sent a letter to the applicant requesting him to provide medical documentation in support of his conditions of PTSD and other Behavioral Health issues. To date, the applicant has not provided a response. 10. In order to complete the record, the Army Review Boards Agency (ARBA) requested a copy of a redacted report from the United States Army Criminal Investigation Division (CID), United States Army Crime Records Center, Quantico, Virginia. The CID conducted a query of their records and provided a Sanitized Report of Investigation (ROI), Military Police Report (MPR) pertaining to the applicant on 11 April 2022. This report contained details of the charges for which the applicant was tried by a General Court-Martial, but makes no mention of the applicant being the victim of an assault during his period of service. 11. On 13 April 2022, the Sanitized ROI, MPR was provided to the applicant with 15 days to submit a rebuttal and/or provide additional documentation in support of the petition. To date, the applicant has not provided a response. 12. Army Regulation 635-200 provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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 applicant desires to have his discharge upgraded to at least a General Discharge because he contends he was subjected to an assault which traumatized him and led him to commit the offenses for which he as separated. His record is void of evidence and he has not provided any evidence showing he was diagnosed with PTSD or any other condition during his time in service. His record is void of evidence and he has not provided any evidence showing he was a victim of assault during his time in service. 15. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and Department of the Defense (DOD). However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 16. MEDICAL REVIEW: The Army Review Board Agency Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy military medical record was not available for review. The applicant indicated PTSD and other mental health issues impacted his behavior. No medical records were provided for review. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documented psychiatric condition to consider with respect to mitigation of the misconduct that led to his discharge. In addition, if documentation of a PTSD diagnosis is subsequently submitted PTSD is not considered a mitigating factor for assault nor attempted murder. Kurta Questions * Did the applicant have a condition or experience that may excuse or mitigate the discharge? No * Did the condition exist or experience occur during military service? No * Does the condition or experience actually excuse or mitigate the discharge? (a) N/A * Does the condition or experience outweigh the discharge? N/A BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board noted that the applicant's trial by a general court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met and the appellate review process and the rights of the applicant were fully protected. The Board also considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome 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 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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Title 10, USC, section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 4. Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, 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. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 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, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: ? Use of force or violence to produce bodily injury or death ? Abuse of a position of trust ? Disregard by a superior of customary superior-subordinate relationships ? Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army ? Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. e. A dishonorable discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 6. 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 UOTHC 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. 7. 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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 8. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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, 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. 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// ABCMR Record of Proceedings (cont) AR20210014237 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1