IN THE CASE OF: BOARD DATE: 31 May 2022 DOCKET NUMBER: AR20210011484 APPLICANT REQUESTS: * Reconsideration of his previous request for an upgrade of his bad-conduct discharge to honorable * back pay of $500 per month for nine months to include spousal and child credit at the time of his discharge * compensation for ongoing Post Traumatic Stress Disorder (PTSD) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter to Secretary of Defense * Sentencing Information * DD Form 149, dated 5 June 1998 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Document Confinement to Present for Duty (PDY) * Extension Beyond Expiration Term of Service * Self-Authored Letter, dated 17 November 1997 * Application for Disability Compensation * 2 x Letters from the Department of Veteran Affairs (VA) * Self-Authored Letter * Appellant Brief * Withdrawal of Court-Martial Charge FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers on 19 August 1999 and on 12 April 1995 2. The applicant indicates, on his application, that he is currently homeless. In his self- authored letter he states, in effect: a. Because of the error in his discharge, he is requesting an updated/corrected discharge and DD Form 214. b. He is also requesting back pay of $500 per month for nine months of pay for the time indicated in the documents he provided for the Board. Said back pay and compensation should include spousal and child credit at the time of his discharge. He is also requesting compensation for ongoing PTSD. c. It's his sincere hope to get this resolved as soon as possible. He is currently homeless and depending on friends and family for the majority of his day-to-day housing and support. The Board's assistance in this matter is greatly appreciated. 3. In a second self-authored letter, the applicant states, in effect: a. He was sending the letter to address his concern pertaining to his military discharge. He would appreciate the Board's attentiveness with assistance of upgrading his military discharge. The statements he provided for the Board are accurate and true. There are some issues he complained about and he would like to make the Board award of them. b. He entered the United States Army Infantry Training Academy with the rank of private first class (PFC) and never was promoted, during his tour of duty. After six months, upon his arrival at Fort Hood, TX, he was promoted to specialist (SPC) because of his PFC rank. The promotion was not granted not because of disciplinary actions but because of a lack of initiative of his superiors. c. He contracted symptoms, while in the Persian Gulf. As of today, he had been unable to receive assistance from the VA and was refused treatment due to the nature of his military discharge. These symptoms did not exist, prior to his deployment to the Persian Gulf. d. He did not receive any help or counseling for marital or family problems upon his return from the Persian Gulf, which resulted in him going absent without leave (AWOL) and marital separation. e. Those are just a few problems he encountered, during his tour of duty. f. He also entered the psychiatric ward at the in because of all the distress he had been through, but this was never considered as an option for a medical discharge from the military. He was diagnosed with schizophrenia due to all of the distress he had experienced. But this was never considered as an option for a medical discharge from the military. g. The parties in charge of deciding his release from the military did not know of him. He thinks it was erroneous to discharge him with a bad-conduct discharge or anything less. The military failed to provide the support he needed upon returning from Desert Storm. h. His marriage went into discourse, which resulted in separation. He accepted punishment without any animosity towards the military. i. From 1993 to the present, he thinks he has suffered enough with the wound. His experience in Desert Storm has impacted his life and he's in dire need of the Board's help in regaining his life. j. He is requesting an upgrade of his discharge from a bad-conduct discharge to an honorable or medical discharge due to his PTSD. Symptoms he's sustained due to PTSD are severe depression, psychological (suicidal thoughts), physical disorders, irritability, anxiety, difficulty with maintaining personal close relationships and homelessness that did not exist pre-war. k. In addition to his issues stemming for Desert Storm, three of his children have been affected by PTSD. His children are dealing with social and emotional issues. At the present, they are school aged students and are having difficulties with their behaviors in school. l. It is extremely important that his military status be reviewed and upgraded. He desperately needs assistance from his country so his children and he can live a healthier, more productive and full lives. Upgrading his discharge status would afform him and his children the opportunity to receive proper treatment. An upgraded discharge would allow him to be able to use benefits from the GI Bill and to further his education. m. He, like the Board members, has a family to support. He had the opportunity to be interviewed by a high ranking recruiter, but the recruiter was unable to process anything because of his discharge. The recruiter expressed interest in recruiting the applicant and the applicant was to report as soon as a decision had been made to upgrading his discharge. n. He has served and fought for his country. Now, he is asking his country for help. Given the opportunity, he would gladly serve his country again in any capacity required of him. The military was and is a great place to be, but during his tour there was a weakness in his leadership. 4. The applicant provides the following documents, not contained in his service record, for the Board's consideration: a. A document, which states sentence and shows the sentence the applicant could have received in his court-martial and the pretrial agreement of serving only 6 months in confinement. b. An application from the applicant, dated 5 June 1998, which states, in effect: (1) The parties in charge of deciding his release from the Army did not know him or of him. He accepted his punishment accordingly under the Uniform Code of Military Justice (UCMJ). (2) In February 1989, he reported to basic training as a PFC. He had a few deaths in his family to include his father, grandfather, daughter, and cousin who all passed away within three months of each other. He was unable to attend his daughter's funeral because he was not married to her mother. (3) With all this tragedy, he was set back two weeks in basic training but advanced enough to graduate with his original class. He training in an exercise mission until he became ill and was hospitalized for 16 days. (4) His second daughter was born and he was unable to be there for her birth because he was in the hospital. (5) He asked the Board to life this sanction so he could have an opportunity to pursue a career in Law Enforcement with Houston Police Department or the fire department to provide a better life for his children. He had several interviews but has been unable to get anything processed because of his discharge. c. A VA Application for Disability Compensation and Related Compensation Benefits, dated 11 May 2018, wherein the applicant indicates he has bilateral hearing loss, tinnitus, PTSD, muscle twitching, tingling of extremities, and problems with his feet. d. On 19 November 2002, the applicant received a letter from the VA, which states, the VA had received his application for benefits. They would look into his application but there could be a delay. e. An undated self-authored statement, which states, in effect he just didn't want to die this way. At least let him die and be buried like a veteran. He served his country and sacrificed his life. At least let him have that honor to be buried in the Veteran's Cemetery alongside his father, mother, and sister. He thinks he's suffered long enough with that wound. If he had the opportunity serve again, he would without hesitation. f. A letter from the VA, dated 12 March 2021, which states they received the applicant's letter to the VA. Unfortunately, his issue did not fall within the VA's jurisdiction and it was forwarded to the Department of Defense. 5. On 5 June 1998, the applicant submitted an application to the ABCMR for an upgraded discharge. On 19 August 1999, the ABCMR stated the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probably error or injustice and denied his request. 6. The applicant submitted an application to the ABCMR for an upgraded discharge. On 12 April 1995, the ABCMR stated, the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probably error or injustice and denied his request. 7. On 27 September 2001, the Army Discharge Review Board (ADRB) sent the applicant a letter in reference to his application to the ADRB. Analysis of his records indicated his discharge was directed as a result of General Court-Martial conviction. The ADRB did not hear cases of that nature; therefore, the Board was unable to process his request. 8. On 25 February 2013, the ADRB sent a letter to the applicant stating they did not have the authority to process applications received from former service members after 15 years from the date of discharge, discharge by General Court-Martial, or from those who would like their discharged changed to medical retirement. 9. On 15 March 2000, the applicant received a letter from Client Information and quality Assurance, which states in effect: a. They thanked him for his letter to President Clinton concerning assistance in getting his military discharge upgraded. As much as he would like, the President was unable to personally reply to every communication he received; therefore, the Army Review Boards Agency (ARBA) had been asked to review his letter and provide a reply on his behalf. c. The applicant's letter was being forwarded to the Agency Screening Team for review. The staff of the Board would determine if he had provided sufficient new relevant evidence to reopen his case. d. The issues the applicant cited in his letter would be addressed in the decisional document or administrative letter. 10. On 13 November 1992, the applicant received an Internal Medical Consultation, which shows the impression was the applicant had major depression, questionable schizophrenia, his health maintenance was stable, he had back pain probably secondary to musculoskeletal spasm which should be helped by the medication ordered. 11. On 5 December 2000, the applicant received a letter from the Office of the Secretary of Defense, which states, in effect: a. As the special assistant for Gulf War Illnesses, Medical Readiness, and Military deployments, the author was responsible for evaluating potential health impacts of his service during the Gulf War. The author was committed to investigating and providing the applicant with the most up-to-date and scientifically valid information available regarding the demolition of chemical agent munitions of Khamisiyah, Iraq on 10 March 1991. b. In 1997, the author's office announced that some Gulf War veterans may have been exposed to a very low level of chemical agent resulting from this demolition. He did not receive a letter then because their analysis showed that his unit was not in the potential exposure area. c. Since that announcement, more information had become available, and they had worked hard to improve their knowledge of the potential exposure areas and unit locations. As a result of these ongoing investigation, the author was contacting Gulf War veterans, like the applicant, whose units were in Khamisiyah between 10 and 13 March 1991. d. Using state of the art computer modeling technology and more accurate unit location data, they have improved their analysis of potential exposures to individuals whose units were near Khamisiyah, during the demolition of Iraqi weapons. The models not predict the applicant was with his unit at the time of the demolition at Khamisiyah, he may, indeed have been exposed to very low levels of a chemical agent for a brief prior of time (less than three days) after the demolition. It was important for the applicant to know, based on current medical evidence and ongoing research, there was no indication that any long-term health effected would be expected from a brief, low-level exposure to chemical agents that may have occurred near Khamisiyah. e. The author enclosed a fact sheet that outlined their analysis as well as answers to some frequently asked questions. If the applicant had additional questions about any of the information that he had provided, he could call the office or email them. 11. The applicant received a Certificate of Appreciation from the Commissioner of Harris County Precinct Two. for his loyalty, dedication and commitment to the performance of his duties for the period ending 31 December 1999. 12. The applicant received a certificate from the, upon the accomplishment of high school graduation on 1 June 1987. 13. On 21 August 2001, the applicant received a letter from the Afro-American Sheriff's Deputy League that states, in effect: a. The president of the league has known the applicant for several years. He had never known the applicant to be a trouble maker. b. The applicant has good character and is a person of honesty and high integrity. As the author's organization fights against racism, discrimination, and for equality and equal protection under the law, they would also count on the applicant for support. c. The author truly believed the applicant would be a hard worker and team player to an organization. He would be an asset and the author strongly recommended him. 14. The applicant received a letter from the US Department of Transportation, wherein he successfully passed the electronic portion of the assessment portion. He was to have further testing to become and employee of the Transportation Security Administration. 15. On 13 February 1989, at the age of 19 years old, the applicant enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 16 February 1989, he was discharged from the USAR DEP and entered active duty for a period of 4 years. His DA Form 2-1 (Personnel Qualification Record) shows he entered one station unit training on 20 March 1989. 16. On 2 June 1989, he received a certificate, which shows he successfully completed the Individual Infantry Training at the United States Army Infantry Center. 17. On 26 September 1989, the applicant received a memorandum or record subject: Delta Force Recruiting, which informs the applicant a recruiting team for the Delta Force would be in his area and how to process his application. 18. The applicant received a Certificate of Desert Shield/Storm Participation. 19. On 9 June 1991, the applicant received an Army Commendation Medal for exceptionally meritorious service and performance of duty from 16 January 1991 to 1 March 1991, during Operation Desert Storm. 20. On 20 September 1991, the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL). 21. A Report of Return of Absentee shows he was returned to duty on 17 November 1992. 23. Memorandums show the applicant court-martial charges were withdrawn and dismissed without prejudice due to the loss of the original court-martial case. 24. On 15 December 1992, the applicant's commander preferred a court-martial charge against the applicant for being AWOL from on or about 20 September 1991 until he was apprehended on or about 17 November 1992. 25. A Case Abstract shows the following information: * he was married with one child * he was a Bradley Crewman * he was a high school graduate * he had 2 years and 10 months of creditable service * he had pretrial confinement from 17 November 1992 to 23 February 1993 * he served in Saudi Arabia from 27 September 1990 through 13 April 1991 * he was charged with desertion from 20 September 1991 until apprehended on 17 November 1992 he pled guilty to and was found guilty of the charge except the words "until apprehended" * the sentence adjudged was a bad-conduct discharge, 9 months' confinement, forfeiture of $5000 or 9 months and reduction to the grade of private/E-1 * he had a pretrial agreement for confinement no more than 6 months 26. On 23 March 1993, a document entitled Request for Clemency, states in effect: a. The defense counsel was requesting clemency of the applicant's remaining confinement and that the Convening Authority disapprove the bad-conduct discharge and forfeitures of $500.00 a month for 9 months. b. The facts and circumstances surrounding the applicant's conviction warranted leniency. The applicant was a law abiding, young man who up until he committed this offense had never been in any trouble with the civilian or military authorities. The applicant fully understood the seriousness of his actions and did not offer any excuses for them; however, he wanted the Convening Authority to take into consideration the circumstances surrounding his AWOL. c. The applicant committed a serious criminal offense; however, he was not a criminal. To understand why he deserted the Army, the Convening Authority had to look at what had been going on in his life prior to him leaving. d. Ever since the applicant joined the Army he had numerous personal problems in his life. Prior to joining the military, he had never been away from his family. He grew up in a later family the 15th of 17 children. They were close-knit and loving. e. While at basic training, the applicant's father passed away. After he returned from his father's funeral, his unborn daughter passed away. Because the applicant was not married to the mother, he was not allowed to attend his daughter's funeral. f. After arriving at Fort Hood, the applicant's mother became extremely ill because of diabetes. Soon after he arrived at Fort Hood, he was sent to Germany for 30 days. While in Germany, the applicant's second daughter was born. Again, he was not allowed to go home because he was not married. In addition, while in Germany, the applicant had some medical problems. He was exposed to the elements and suffered from frostbite. In addition, he had his wisdom teeth pulled and developed infections in his arm from the IV and had to be medevac'd back to the states g. After arriving back at Fort Hood, the applicant and his girlfriend got married; however, because of his wife's job, she remained in n and they never lived together. The stress of not being able to see his wife and daughter soon began to take its toll. h. In September 1990, the applicant went to Saudi Arabia. The day he left, his wife did not even go to see him off. While in Saudi Arabia, the applicant constantly wrote to his wife; however, she never wrote back. i. Prior to going to Saudi Arabia, the applicant was in an automobile accident and received a settlement from the insurance company. He was able to save most of this plus some of his pay. While, in Saudi Arabia, the applicant got into financial difficulties. His wife was receiving his pay checks and was supposed to pay the bills; however, she did not do this. In addition, she took out over $10,000 from his account and did not use it for the bills or to support his daughter. j. During a very dangerous time in the applicant's life and a time when he must keep his mind on his work, the applicant was constantly thinking about his wife and daughter. In addition to financial problems, while in Saudi Arabia, the applicant saw death, burnt bodies, and bodies that had parts missing from them. All of this was a tremendous experience on a young man who had never been away from his family before. k. After spending 6 months in Saudi Arabia, the applicant went home. Even though his wife had got him in serious financial problems, he still loved her and wanted her to go and live with him. After arriving home, the applicant tried to get his wife to quit her job and have the family live together; however, the applicant's wife no longer wanted him. This devastated the applicant. l. During the months to follow his return from Saudi Arabia, the applicant tried to get his wife to join him. One day, he was given permission to take some belongings back to Houston. When the applicant left for Houston, he had every intention of returning. Once again, he tried to convince his wife to join him; however, she told him their marriage was over. m. Because the applicant couldn't handle his wife ending their marriage, he did something he truly regrets. He had just lost the two most important people in his life and eventually decided not to return to his unit until his wife and daughter went back with him. Unfortunately, this never happened and the applicant never returned. Finally, in November 1993, the applicant went to the hospital to be treated for severe depression. n. The applicant did not offer any of this information as an excuse for his actions. He did not blame his wife for his actions. He fully understood that his actions were of his own doing and assumed full responsibility for them. However, he wanted the Convening Authority to have a complete picture of the circumstances surrounding his case before making a decision. o. The applicant realized he had to be punished for his actions and had already been properly punished for them. He had severed almost all of his confinement and was due to get out of confinement on 16 April 1993. Further confinement was unwarranted, unnecessary and did not accomplish any purpose. The applicant respectfully requested his confinement be reduced to be allowed to get out of confinement immediately. p. The applicant was a young man who wanted the opportunity to prove to the Army and society that he was a good man and could be an asset to society as a whole. He deserved a second opportunity with the Army. He was not a criminal or even a bad person. In fact, just the opposite was true. He was a young man who because of the way his personal problems affected him made a mistake. q. Everybody makes mistakes and great consideration should be given to the circumstances surrounding his case. He did not go AWOL because he was trying to avoid war, maneuvers, or his duty. He left for one reason and one reason only, to get his wife back. r. He realized what he did was wrong and would handle the situation differently; however, he could not take back his actions. He could only learn from his mistakes and drive forward. He was at the Convening Authority's mercy. If he received a punitive discharge, his opportunities in the civilian world would be significantly diminished. s. The applicant wanted to stay in the Army; however, his desires were in the Convening Authority's hands, which may sound incredible but was true. The applicant liked the Army and wanted to make it a career. He did not go AWOL because of his dislike for the Army but to get his wife back. By allowing the applicant to remain in the Army it would not have a negative impact on his unit. Because of the length of his AWOL, there was nobody left from his unit who knew anything about his situation. t. A punitive discharge was disproportionate punishment in the case. The bad- conduct discharge would have a devastating impact on the applicant. In the troubled economy, the ineradicable stigma of a punitive discharge would close too many doors to him. If a bad-conduct discharge was approved, the applicant's opportunity to find work to provide a decent living for him and his family would be seriously diminished. The crime the applicant was convicted of did not warrant punishing him the rest of his life. Two of the main goals of punishment was to rehabilitate an individual and to punish them for the crimes they had committed. Rehabilitation was not needed in the case the goal of the punishment had been accomplished. He had paid his debt to society. Further punishment was not necessary and served no purpose but to severely limit his ability to obtain work and become and asset to society. u. The applicant would be getting a divorce as soon as he was released from confinement and had the money to pay for it. If the Convening Authority decided not to allow him remain in the Army, he did not have a job lined up. Because of the troubled economy in Houston, his opportunity to secure work was rather limited. Approving the forfeitures would only compound his already bleak immediate future. v. Once the applicant was out of confinement, he wanted to be able to start fresh and make a new life for himself. By approving the forfeitures, the applicant had more hurdles to overcome. If the applicant was not allowed to remain in the Army, he had the difficult take of obtaining a job and he needed all the money he could get to get started again and provide for himself and pay child support for his daughter. By taking money from him only added unnecessary burden on him. In addition, the applicant was unable to support himself and his family, it would put a burden on society. w. For all those reasons, they requested the Convening Authority grant clemency on his remaining confinement and disapprove the bad-conduct discharge and the forfeitures of $500 for nine months. 27. With the request for clemency the applicant provided letters of support, which state in effect: a. A letter from the Director of Athletics and Physical Education, the applicant was a model student during his years at the school. He never allowed himself to become involved in any irregular activities which could have gotten him into trouble. b. A letter from the Executive Principle, the applicant was a 1987 graduate of his high school and was a good student and person, during his tenure. c. A letter from a friend who has known the applicant most of his life. The author watched the applicant grow up. The applicant consistently displayed a character, which was above reproach. d. A letter from members of his church expressing concern for the applicant's mother who had been a member of the church for 15 years and for the applicant who was the 15th of 17 children. The applicant graduated with honors and completed Reserve Officer Training Corps (ROTC) before entering the Armed Services. The stress from his father's death along with the continued illness of his mother had a great impact on the applicant. It would be of great help to his mother if he were allowed to go home and help take care of her. The church would be most grateful if the petition were granted for the applicant's release. e. A letter from the Naval Science Instructor, the applicant was in ROTC for four years. He was active in various unit function and was never a disciplinary problem. f. A self-authored letter, which states in effect: (1) He was writing on behalf of himself and his family. He was asking for just a little of the Convening Authority's important time from his busy schedule. (2) The reason for the letter was to ask the Convening Authority to review the document from his defense counsel concerning his military discharge and request for clemency. The applicant was confined from 17 November 1992 to 1 April 1993. The length of time it would take him to receive his discharge, whether it be honorable or dishonorable would take at least six month to a year, starting from April 1993. This length of time had taken a devastating toll on his life and until this matter was settled it would continue to hinder his life, not to mention the waiting process for an upgrade of another six month to a year. (3) He served his country not because he had to but because he wanted to. In the process of serving his country, he made a mistake, as it is explained in the document from his defense counsel and he was unable to be considered for employment with anyone because of his status. It was like his life had been on hold. He could not support himself or his daughter. He was a financial burden to his mother. The City of Firefighters Association would not consider him for employment because of his situation. 28. On 30 March 1993, a General Court-Martial Order was published showing the applicant pled guilty to and was found guilty of desertion from on or about 20 September 1991 to on or about 17 November 1992. He was sentenced on 23 February 1993 to a bad-conduct discharge, confinement for nine months, forfeiture of $500 pay per month for nine months, and reduction to Private/E-1. On 30 March 1993, the sentence was approved and, except for the part of the sentence extending to a bad-conduct discharge would be executed, but for the execution of that part of the sentence adjudging confinement in excess of five months and 11 days was suspended for one year, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action. 29. On 1 April 1993, the applicant was released from prison for expiration of his sentence. On the same day, his duty states was changed from confinement to PDY. 30. On 2 April 1993, a memorandum subject: Court-Martial was completed by the Chief, Criminal Law stating the applicant was released from confinement on 1 April 1993 as a result of a court-martial conviction. His expiration term of service (ETS) date was 15 February 1993; however, his new ETS date needed to be adjusted to reflect the bad time from his AWOL and confinement. 31 On 15 April 1993, a Personnel Action shows the applicant had been extended beyond his ETS of 15 February 1993 due to a court-martial conviction and confinement from 17 November 1992 until 1 April 1993. 32. On 28 April 1993, a document from the United States Army Court of Military Review was completed and states, in effect: a. On 11 and 23 February 1993, the applicant was tried by a military judge sitting as a general court-martial at Fort Hood, Texas. b. The applicant was sentenced to a bad-conduct discharge, confinement for nine months, forfeiture of $500 pay per month for nine months, and reduction to Private/E-1. The Convening Authority approved only so much of the sentence as allowed for a bad- conduct discharge, confinement for five months and 11 days, forfeiture of $500 pay per month for nine months, and reduction to Private/E-1. c. The record reflected that the trial defense counsel did not challenge the military judge for cause or raise any jurisdictional challenge. Error and Argument: The applicant's court-martial lacked jurisdiction because the military judge was designated in violation of the appointments clause of the Constitution. Because this error was jurisdictional and the record contained no evidence of a knowing waiver, the issue was not waived by a failure to raise it at trial. d. Wherefore, the applicant requests the court set aside the findings and the sentence and dismiss the charge and its specification. e. On consideration of the entire record, including consideration of the issue personally specified by the applicant, the court held the findings of guilty and the sentence as approved authority correct in law and fact. Accordingly, those findings of guilty and the sentence were affirmed. 33. On 3 May 1993, the applicant received a letter from the Army Court of Military Review, which states in effect they regretted to inform him they had rendered its decision in his case and affirmed the findings and sentence. He could petition the United States Court of Military Appeals for a grant a review of their decision. 34. On 26 May 1993, a memorandum subject Involuntary Excess Leave states the Convening Authority considered his overall service record, court-martial conviction, the record of trial, and the recommendations of the Staff Judge Advocate and found his continued presence on active duty would not be productive or beneficial to the US Army and directed the applicant to take involuntary excess leave. The applicant waived submission of matter for consideration regarding the involuntary excess leave. 35. On 29 October 1993, a Report to Suspend Favorable Personnel Actions (Flag) was completed because the applicant was administratively reassigned to the unit pending appellate review of a bad-conduct discharge. 36. On 10 November 1993, a General Court-Martial Order was published stating his sentence had been finally affirmed and the bad-conduct discharge was ordered executed. That portion of the sentence extending to confinement had been served. 37. On 8 November 1994, the applicant's flag was removed effective 28 November 1994 because of final action/discharge. 38. On 28 November 1994, the applicant was discharged accordingly. His DD Form 214 shows he received a bad conduct discharge. He completed 4 years, 3 months, and 2 days of active duty service. He had lost time from 20 September 1991 to 16 November 1992 and 17 November 1992 to 31 March 1993. He was awarded or authorized the: * National Defense Service Medal * Southwest Asia Service Medal w/ 1 Service Star * Army Service Ribbon * Sharpshooter Marksmanship Badge Rifle M16 * Sharpshooter Marksmanship Badge Grenade 39. On 25 January 2000, the applicant sent a letter to the President of the United States, which states in effect: a. He was sending the letter to address his concern pertaining to his military discharge. He would appreciate the President's attentiveness to review his military records and other additional statements to decide to upgrade his discharge. The statements were accurate and true. There were some issues he had not complained about but he wanted to make the President aware of them. b. He entered the United States Army Infantry Training Academy with the rank of PFC and never was promoted during his tour of duty. Not because of any disciplinary problems but because of the lack of initiative of his superiors. c. He had symptoms he contracted, while in the Persian Gulf. He had not complained nor taken any actions to try and seek any help from the military. The symptoms did not exist before his deployment to the Persian Gulf. d. He did not receive any help or counseling for marital or family problems upon his return from the Persian Gulf, which resulted in his AWOL and marital separation. e. Those were just a few of the problems he encountered during his tour of duty. f. He also entered the psychiatric ward in because of all the distress he had been through, but this was not considered as an option for a medical discharge from the military. g. The parties in charge of deciding his release from the military did not know him or of him. He thinks it was wrong to discharge him with a bad-conduct discharge or anything less. He accepted his punishment without any animosity towards anyone. h. From 1993 to when he wrote the letter, he think he had suffered enough with the wound. He was asking the President of the United States for his help to lift the sanction so he could have an opportunity to pursue a career in Law Enforcement with the Houston Police Department or the Huston Fire Department to provide a better future for his children. i. The applicant, like the President, had a family to support. The applicant had the opportunity to be interviewed by a high ranking recruiter but he was unable to process anything because of his discharge. The recruiter expressed interest in recruiting the applicant and he was to report to the recruiter as soon as a decision had been made regarding his request to upgrade his discharge. j. The applicant had served and fought for his country. Now he was asking his country for help. Given the opportunity, the applicant would serve again. The military was and is a great place to be but during his tour of duty there was a weakness in his leadership. 40. On 25 September 2000, the applicant received a response to his letter to the President, which states, in effect: a. The letter was in response to his inquiry of 25 January 2000 to President Bill Clinton, wherein the applicant was requesting an upgrade to his military discharge. b. The National Personnel Records Center (NPRC) was the physical custodian of his Army Personnel Record. The NPRC had no authority to review the facts and circumstances surrounding separation from the military service. c. The applicant discharge was reviewed by the ABCMR in 1999. A copy of the letter explaining the Board's decision was enclosed for the applicant's review. d. The NPRC was unable to assist the applicant but hopped the information they provided him was helpful. 40. On 16 May 2002, the applicant received a letter from the NPRC, wherein they provided the documents from the applicant's request for separation documents and personnel records. 42. The applicant is requesting an upgraded discharge, back pay of $500 pay per month for nine months and compensation for ongoing PTSD. The applicant states there were problems he encountered while he was on active duty to include his father passing away, his daughter passing away, and the birth of his second daughter. He was unable to go to his daughter's funeral or daughter's birth because he was not married to the mother of the children. He states he was in a psychiatric ward when he was AWOL and that was not considered by the individuals who decided his discharge. a. The applicant's service record is void of and the applicant did not provide evidence of his psychiatric hospital stay. b. The applicant's service records show he was awarded the Army Commendation Medal for his service in Operation Desert Storm. He was tried by General Court-Martial for desertion from on or about 20 September 1991 to on or about 17 November 1992. c. 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. d. Army Regulation 635-200 (Personnel Separations) 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. e. The Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. 1. As far as back pay of $500 per month for nine months to include spousal and child credit at the time of his discharge and compensation for ongoing Post Traumatic Stress Disorder (PTSD), the Board noted that 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. 2. As far as the discharge upgrade, The Board carefully considered the applicants request, his statement, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The Board determined that although there is no error in his court-martial conviction and resultant bad conduct discharge, and although his service did not rise to the level required for an honorable discharge, given his service in Southwest Asia, his 4 years, 3 months, and 2 days of active duty service, the totality of his situation, and the circumstances of his separation, the Board determined that the character of service the applicant received upon separation was unjust and voted, as a matter of clemency, to upgrade it to general, under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. In addition to the administration notes below, the Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Numbers on 19 August 1999. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 28 November 194 showing his character of service as Under Honorable Conditions, General. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully honorable, back pay of $500 per month for nine months to include spousal and child credit at the time of his discharge, or compensation for ongoing Post Traumatic Stress Disorder. 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): A review of the applicant's record provides administrative error in annotating his Army Commendation Medal on his DD Form 214. Correct the DD Form 214 for the period ending on 28 November 1994 by adding the Army Commendation Medal. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations) 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. a. An honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. 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. 2. 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. 3. Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 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; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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 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 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) AR20210011484 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1