IN THE CASE OF: BOARD DATE: 20 April 2022 DOCKET NUMBER: AR20210016408 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 29 May 2021 * 14 page sworn deposition, dated 25 May 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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, request an upgrade of military discharge from 1988 based on factual circumstances of a 19-year old soldier. See sworn deposition. 3. In a sworn deposition the applicant contends: a. He is a 52-year old former military service member. He joined the Regular Army in 1986 prior to his high school graduation. He was sworn in on September 1986 and shipped to Fort McClellan Alabama, where he completed basic training. Following his graduation, he initially had Orders to Fort Jackson, South Carolina to attend his Advanced Individual Training (AIT) but was instead transferred to Fort Lee, VA where he served and graduated. from the largest AIT Company on post at the time in 1987 which was a co-ed Foxtrot company. After successfully graduating and receiving his certification as a 76Y/20- Unit Supply Specialist/Armorer, he was transferred to Ft. Lewis, WA. for permanent Duty and that was when, he became an alcoholic, a crackhead. He began suffering from the undiagnosed mental health disability of depression in which was not offered as a treatment for veterans 34 years ago in 1987. He literally became a victim from the war on drugs at the age of 19. b. According to his disciplinary record on paper, he would be easily stereotyped as a problem child. At the age of 18-19. He had unaddressed issues behind the scenes which nobody in his chain of command sought to address in efforts to rectify. sought to address in effort to rectify. Prior to his entry into the Military, he never used or consumed Alcohol or drugs. When he entered the Military he was introduced to alcohol. He was instructed how the (PUB) was the daily meeting place off duty. He was literally trained to use alcohol as a reward. He was in a battle of addiction at the young age of 18ed to use alcohol as a reward or any accomplishment (on or off duty). In the process, I was in a Battle of Addiction at the young age of 18 and "A MONSTER OF ADDICTION WAS BEING DEVELOPED AND CREATED." c. Prior to his 19th Birthday in 1987 while stationed at Fort Lewis, WA---Charlie Company, Air Defense Artillery unit under the Command of a female Commander, [Captain A_] in all due respect. He was "High & Tight" as a soldier and he loved his Military Operating Specialist (MOS) duties. He was promoted to E-2 and he could see myself making the Military a full career for myself until: In the Spring and Summer of 198] a group of peer soldiers within his company use to travel in separate vehicles back and forth to Vancouver, Canada, on the weekends to hang-out and party. On one weekend a pair of soldier’s coming back to post from Canada got into a severe car accident leaving both soldiers as victims. The driver [Pvt. M_ T_J] 18-19yrs of age from Queens, New York survived the accident with major injuries. The passenger unknown soldier to him died immediately. Both soldiers were extremely intoxicated from their night before traveling back to post. Pvt. M_ T_ J was never disciplined by the Commander [Captain A_ for driving under the legal age, nor was he sanctioned for costing a fellow Military service member his life from his negligent actions. Instead, [Pvt. M_ T_ J was allowed to continue his service within the United States Army without sanctions. d. He was never afforded the same partial treatment of alternatives available to him prior to his 3 Article 15 's, his General Court Martial, and ultimate Bad Conduct Discharge in September 1988. The Commander of Charlie Company Cpt. A_ made an official announcement to the entire company stating, "under-age drinking will-not be tolerated in "my" company. If "I" catch anyone violating this Order in "my" company, you will be disciplined severely. Other than Pvt. M_ T_ L, he was the only soldier within the company who was under the age of 21. In 1987 Cpt. A_ (indirectly and directly) had to be making that announcement to him. e. It appears that he was used as a sacrificial lamb and scapegoat for CPT A_. In 1987 commissioned officers had the power and authority to exercise authority towards enlisted soldier regardless of his or her rank and regardless of the non-commissioned officer’s service time or war time invested within the United States. Qualified immunity became a justification for commissioned officers to abuse their authority arbitrarily, capriciously, and malicious, with prejudice. The United States Armed Forces did not have an established protocol to address addiction and mental health disabilities for veteran soldiers. Once he was discharged his future was completely tarnished. f. Shortly after serving his 45-days Article 15 sanction, he was targeted by CPT A_ to make an example of consequences for anyone who failed or disobeyed her orders. One Sunday she came to the company off duty and ordered him to her office. When he appeared she said “I’m restricting you to the company and I’m processing paperwork to discharge you from the Army as soon as possible.” He was dismissed immediately with no further comment. He headed back to his room and passed SPC B_ W_ who asked him what happened. He told him what happened and SPC B_ W_ offered him several drinks. Finally, after he was really intoxicated and still angry, SPC B_ W_ called him to the latrine and offered him some crack. He had never smoked cigarettes, marijuana or consumed any illegal drugs. He did not even know what crack was or what it looked like. g. Out of rage and anger fueled behind alcohol because he was recently told he was being kicked-out of the Army and there was absolutely nothing that he could do about it, he said, “Fuck It! He had nothing to lose and he accepted his offer and took a puff from the crack pipe. From that spring morning in 1987 until May 2021 his entire life has taken a downward spiral and has been in bondage as a prisoner of war on drugs from addiction, bondage, and captivity. h. In 1986-1987 the United States Military did-not address addiction or mental health issues with men and women. Their only protocol in resolving any problem in which surfaced was: "Disciplinary or Discharge Sanctions. " Unfortunately, he was a Victim of them both. His General Court-Martial charges and convictions were those of disciplinary sanctions. In 1987 at the age of 19 he knew absolutely nothing about the United States Code of Military Justice or criminal justice at all because he was never subjected to any Legal consequences in his life for any wrong doing. With a (Pre- Trial agreement) of 16-months, he was sentenced after a bench trial and transferred to Ft. Riley, Kansas(USACA) to serve his stockade sentence imposed. Whereas, he was released in September 1988 and received a conduct discharge. i. For 34yrs he has been wondering through this Wilderness of addiction. from the 1980 era War On Drugs. Being lost within the field of addiction, becoming a liability to himself and Country. The Army became missing in action when his entire life, hopes, and dreams became a circular rotation of alcohol, drug, addiction, institutions, jails, prisons, and homelessness, and unaddressed mental health issues of extreme depression at the age of 19. Discharge was the military’s only answer to resolve problems back in the 1980’s era. He became lost within the field as a prisoner of war. He was hoping, wishing and praying that someone anyone would extend a helping hand in an attempt to rescue a fallen soldier. j. While sitting in his local County jail, serving a 6-month sentence, one late-night he asked a correctional officer if he could google an address for him to the Veteran’s Administration (VA) to obtain a copy of his DD Form 214. The officer went a step further by printing him a copy of the necessary application. During their conversation he discovered that the officer was a former sergeant from the U.S. Marine. The officer advised him to request an upgrade to his discharge. He is giving everything that he has left in his heart, soul and spirit to receive an upgrade. He is not a failure. There is a better man in him. A better father in him. A better son in him. He at the age of 5, 34- years later still have the will and determination to rectify a wrong in which he believes was administered unjustly, with malic, and prejudice in 1987 towards a 19-year old who took an oath to serve and protect, to sacrifice his life in doing so to the point of death. k. He sincerely and faithfully pray that the Discharge Review Board exercise empathy by putting their foot into his shoes and imagine feeling what he has had to feel for the last 34-years of his life. The circumstances he had to deal with alone. Today he is humbly and respectfully asking this Discharge Review Board to consider the honest and truthful merits within this sworn deposition as a whole and In the Interest of Justice for a former united states military service member. Please, grant and or approve a decision to upgrade his BCD he received in September 1988 to one that is consistent with United States Constitution. 4. The applicant enlisted in the U.S. Army Reserve on 8 July 1986, under the DEP. He enlisted in the Regular Army on 12 September 1986. Upon completion of initial entry training, he was awarded military occupational specialty 76Y (Unit Supply Specialist). He was assigned to Charlie Battery, 1/4TH Air Defense Artillery at Fort Lewis, Washington. 5. The applicant was formally counseled on 7 May 1987, for shoplifting an item of an unspecified amount from the store while intoxicated. 6. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 1 June 1987, for wrongfully possessing and or consuming alcoholic beverages while under the legal drinking age of 21 years’ old, on or about 6 May 1987 * on 1 June 1987, for wrongfully appropriating a passenger car, of some value, the property of SPC K_ L. O_ Sr., on or about 10 May 1987 7. DA Form 4126-R dated 31 July 1987 shows the applicant was approved for a bar to reenlistment due to repeatedly underage drinking offenses, little to no regards for fellow soldier, attempting shoplift at a civilian establishment and wrongful appropriation of his fellow soldier’s passenger car. The applicant elected to submit a statement on his own behalf, however he failed to submit a statement. 8. The applicant record also contains DA Form 268, suspension of favorable personnel action dated 31 July 1987 due to court-martial action pending a drug investigation. 9. Before a general court-martial on 6 October 1987, at Fort Lewis, Washington, the applicant was found guilty of: a. Charge I: Violating Article 121 of the Uniform Code of Military Justice (UCMJ); specifically, 1. Specification one: wrongfully appropriates a key of a value less than $100.00, on or about 3 June 1987. 2. Specification two: wrongfully appropriate a motor vehicle, of a value of more than $100.00, on or about 3 July 1987 3. Specification three: steal a wallet containing a back card, approximately $27.00 in US Currency, a military identification card, the aforementioned items collectively of a value less than $100.00, on or about 19 July 1987 4. Specification four: wrongfully appropriate a key, of a value less than $100.00, on or about 5 September 1987 5. Specification five: wrongfully appropriate a motor vehicle, of a value more than $100.00, on or about 5 September 1987 b. Charge II: Violating Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, one specification of failing to go at the time prescribed to appointed place of duty, afternoon duty formation, on or about 17 September 1987. c. Charge III: Violating Article 92 of the Uniform Code of Military Justice (UCMJ); specifically, one specification, failing to obey an order from his superior noncommissioned officer, on or about 17 September 1987. The court sentenced him to reduction to forfeiture of all pay and allowances, confinement for 27 months and to be discharged from the service with a BCD. The sentence was approved on 4 November 1987 and the record of trial was forwarded for appellate review. 10. The U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 20 January 1988. 11. General Court-Martial Order Number 346, issued by Headquarters, U.S. Army Correctional Activity and Fort Sill, Fort Riley, Kansas, on 9 June 1988, noted that the sentence had been finally affirmed and ordered the BCD duly executed. 12. The applicant underwent a mental status evaluation on or about 8 July 1988. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he was psychiatrically cleared for any action deemed appropriate by command. 13. DA Form 3081-R shows on or about 29 July 1988 the applicant waived his right to undergo a medical separation examination. 14. The applicant was discharged on 4 August 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 his service characterized as bad conduct. 15. 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. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. 17. 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 a mental status evaluation was completed on 8 Jul 1988. His MSE was within normal limits and he was found mentally responsible. He waived a separation physical. The applicant checked the block for PTSD as an issue related to his upgrade request. No medical documents indicating a psychiatric diagnosis were provided for review. In his personal statement to the board he indicated he had an undiagnosed disability of Depression. A review of JLV indicates the applicant has not been treated or evaluated 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 no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documented psychiatric diagnosis to consider with respect to mitigation of his misconduct. If subsequent documentation is provided, neither Depression nor PTSD are mitigating factors for the misconduct that led to his discharge. a. 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) No (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A 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. Upon review of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official finding no documented psychiatric diagnosis to consider with respect to mitigation of his misconduct. Neither Depression nor PTSD are mitigating factors for the misconduct that led to his discharge. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant no provided post-service character letters of support 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. 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 that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or BCD and provided that a Soldier would be given a BCD 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. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. 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. 5. 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. 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) AR20210016408 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1