IN THE CASE OF: BOARD DATE: 13 April 2022 DOCKET NUMBER: AR20210016237 APPLICANT REQUESTS: in effect, reconsideration of his previous request for an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (DVA) Form 21-4138 (Statement in Support of Claim), dated 20 December 2021 * Self-authored statement, dated 15 June 2021 * Statement from his spouse, dated 17 May 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 July 1987 * Statement from a psychiatric mental health nurse practitioner, dated 26 November 2021 * Statement from a therapist, dated 7 December 2021 * DVA Centralized Intake Coversheet, dated 20 December 2021 FACTS: 1. Incorporated herein by reference are military records, as summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Record (ABCMR) in Docket Number AR20160008760 on 7 August 2018. 2. The applicant states, in effect, he desires an upgrade of his discharge in order to become eligible to receive treatment from the DVA for his mental health condition. a. While stationed in Baumholder, Germany, his 7-month old son died. They did not realize it at the time, but his wife was pregnant with their second son. The following week, he was given a compassionate reassignment to Fort Ord, California and was not afforded an opportunity to grieve. In addition to this stress, the fact that his wife was pregnant made travel difficult. He received no counseling from the Army, nor was he offered any. As a result, he began self-medicating with drugs and alcohol to cope with the loss of his son. He was depressed and his mental health was suffering. b. Upon arrival at Fort Ord, he continued to drink and use drugs. His marriage was falling apart and they were expecting a second child. He continued his downward spiral by writing bad checks to support his drug habit. c. When his second son was born, the applicant was court-martialed and sent to Fort Riley, Kansas to serve a 5-year prison sentence and his wife and child moved in with his parents in . d. He still suffers from depression and anxiety and has nightmares about his son’s death. He’s had a lifelong struggle with drugs and alcohol which led to the failure of two marriages. He is seeking mental health treatment through the DVA and resides in a Salvation Army shelter for Veterans who need treatment for drug dependency. e. He indicated on his DD Form 293 that Post-Traumatic Stress Disorder (PTSD) and other mental health conditions. 3. The applicant's service records show: a. On 19 October 1982, the applicant enlisted into the Regular Army for a period of 3 years. Upon completion of initial entry training, he was awarded military occupational specialty 11B (Infantryman) and assigned to a unit located at Fort Sill, Oklahoma. On 23 February 1984, he extended his period of enlistment to 4 years in order to be eligible for an overseas tour in Germany with accompanied travel for his dependent family members. He arrived at his unit in Baumholder, Germany on 17 April 1984. b. On 19 February 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 92, UCMJ and a lawful regulation by wrongfully operating a privately owned vehicle (POV) while his POV license was suspended. His punishment included: reduction in rank/grade from Private (PV2)/E-2 to Private (PV1)/E-1, suspended for 6 months; forfeiture of $144.00, suspended for 6 months; and 14 days of extra duty. c. On 29 January 1986, the applicant received NJP under the provisions of Article 15, UCMJ for violating Article 112a, UCMJ on or about 12 November 1985 by, wrongfully using a controlled substance, to wit, marijuana. His punishment included: reduction in rank/grade from Private First Class (PFC)/E-3 to PV2/E-2, suspended 90 days; and 14 days of extra duty. d. On 6 April 1981, the suspended portion of his punishment was vacated for violating Article 86, UCMJ on or about 3 February 1986 by, without authority, departing from his appointed place of duty. As a result, he was reduced in rank/grade from PFC/E-3 to PV2/E-2. e. The applicant’s duty status was changed and reported as follows: * From Present for Duty (PDY) to Absent Without Leave (AWOL) on 21 July 1986 * From AWOL to Confined in the Hands of Civil Authorities (CCA) on 28 July 1986 * From CCA to PDY on 6 August 1986 * From PDY to AWOL on 25 September 1986 * From AWOL to Confined in the Hands of Military Authorities (CMA) on 3 October 1986 f. An administrative flag was imposed on the applicant while he was confined pending court-martial. g. General Court-Martial Order (GCMO) Number 3 issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California on 14 January 1987, shows that contrary to the applicant's pleas, a general court-martial convicted the applicant of UCMJ violations. (1) The court found the applicant guilty of the following: * Unauthorized absence from his unit from 21 to 28 July 1986 * Failure to repair on 16 September 1986 * Larceny of property, of a value of $434.56, on 28 July 1986 * Wrongfully and unlawfully rendering eight checks with intent to defraud and for the procurement of unlawful currency, total amount of $1120.00, between 2 and 8 July 1986 * Unauthorized absence from his unit from 26 September to 4 October 1986 * Wrongfully and unlawfully rendering five checks with intent to defraud and for the procurement of unlawful currency, total amount of $480.00, between 14 and 17 September 1986 (2) The court sentenced the applicant to a bad conduct discharge; confinement for 13 months; forfeiture of all pay and allowances; and reduction to the rank/grade of PV1/E-1. The sentence was adjudged on 6 November 1986. (3) On 14 January 1987, the general court-martial convening authority approved the sentence and ordered its execution, except for the bad conduct discharge. h. On 10 March 1987, the United States Army Court of Military Review ordered the correction of GCMO Number 3 issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California on 14 January 1987 to reflect the true proceedings at the trial pertaining to the rendering of bad checks as follows: * Making with intent to defraud and for the procurement of currency, eight checks, five of a value of $100.00 or less and three of a value of more than $100.00, without sufficient funds * Making with intent to defraud and for the procurement of currency, five checks, each of a value of $100.00 or less, without sufficient funds i. The findings of guilty and the sentence were affirmed on 12 March 1987. j. The applicant t underwent a mental status evaluation and it was opined that he had the mental capacity to understand and participated in the proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness). k. On 20 May 1987, the applicant underwent a preseparation medical examination. His Standard Form 93 (Report of Medical History) shows, in part, he indicated he had frequent trouble sleeping. His Standard Form 88 (Report of Medical Examination) shows no defects or diagnoses were found at the time and it was determined he was qualified for separation. l. GCMO Number 427 issued by United States Army Correctional Activity, Fort Riley, Kansas on 7 July 1987 shows the sentence to bad conduct discharge, confinement for 13 months, forfeiture of all pay and allowances, and reduction to PV1/E-1, adjudged on 6 November 1986, as promulgated in the GCMO Number 3 issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California on 14 January 1987, as corrected by United States Army Court of Military Review Order Correction, dated 10 March 1987, had been affirmed and that portion of the sentence pertaining to confinement had been served and the remainder of the sentence pertaining to the bad conduct discharge would be duly executed. m. On 20 July 1987, orders discharged the applicant from the Regular Army, effective 24 July 1987. n. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial with a characterization of service of Bad Conduct. He was credited with completion of 3 years, 10 months, and 17 days of his 4-year enlistment contract, with lost time due to confinement and/or AWOL from 21 July to 5 August 1986, from 25 September to 2 October 1986, from 3 October 1986 to 18 April 1987, and from 19 April to 23 July 1987. Additionally, his DD Form 214 shows he was awarded or authorized the Army Service Ribbon and Marksmanship Qualification Badge with M-16 Bar. 4. On 22 April 2018, the applicant petitioned the ABCMR, requesting an upgrade of his character of service based upon the facts that 20 years had passed and he was ill. On 13 September 2018, the ABCMR informed the applicant the Board had considered his application and denied his request for relief. 5. The applicant provides: a. A statement from his spouse, dated 17 May 2021, wherein she essentially states the applicant is a good man and things changed when their son died and drugs became part of his life and grieving process. She truly hopes he can get the help he needs to return to his old self. b. A statement from a psychiatric mental health nurse practitioner, dated 26 November 2021, wherein she recounts the circumstances surrounding the death of the applicant’s son and his use of drugs and alcohol as coping mechanisms. She emphasizes the applicant’s complaint of not being provided psychological counseling of treatment by the Army following the death of his son or during his period of incarceration. She states the applicant suffers from persistent depression with persistent complex bereavement disorder and his symptoms include: emotional numbness; difficulty planning the future; loss of identity; feeling the future is cut short; retreat from others; persistent anger and guilt. c. Statement from a therapist, dated 7 December 2021, who states the applicant began weekly one-on-one therapy with her on 1 June 2021 to address challenges related to anxiety and depression. Throughout progression in resident treatment, the applicant was building awareness and insight to unhealthy behaviors and developing necessary coping, processing, and grounding tools to assist with making healthy daily life decisions. 6. 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. 7. 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. 8. The applicant’s record is void and he did not provide any evidence of being diagnosed with PTSD or any other mental health condition during his period of service. 9. The applicant desires to have his discharge upgraded and indicated on his application that sexual harassment, PTSD and other mental health conditions are related to his request. a. 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. b. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part of mental health conditions, including PTSD. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 10. MEDICAL REVIEW: The Army Review Board Agency (ARBA) 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 records were not available for review. A review of his service record indicates he completed a separation physical on 20 May 1987. On his Record of Medical History, he denied “depression or excessive worry” and “nervous trouble of any sort.” He reported frequent trouble sleeping. The applicant’s PULHES were all 1’s indicating he met retention standards IAW AR 40-501 and was cleared for administrative separation. A note from his treating provider dated 26 Nov 2021 indicated he was being treated for persistent depression with persistent complex bereavement disorder. On 18 February 2022, he completed a Compensation and Pension examination. At that time, he reported PTSD symptoms related to seeing a soldier die due to an accident. A review of JLV indicates the applicant a service-connected disability rating of 70% for PTSD effective 23 Jun 2021. 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. The applicant met retention standards at the time of his discharge. Under liberal guidance, PTSD is a mitigating factor for drug use. However, PTSD is not a mitigating factor for repeatedly writing bad checks. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist or experience occur during military service? (a) Yes (3) Does the condition or experience actually excuse or mitigate the discharge? (a) No (4) Does the condition or experience outweigh the discharge? (a) No 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 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 his characterization of service. 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. Upon review of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official finding PTSD is a mitigating factor for drug use. However, PTSD is not a mitigating factor for repeatedly writing bad checks. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no post-service achievements to weigh a clemency determination. 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. Therefore, relief was denied. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) stated 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. Paragraph 1-13b (General Discharge) stated 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. Chapter 3 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a bad conduct discharge could only be issued to a Soldier pursuant 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. 3. 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. 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 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. 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; 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. 6. 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//