IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20210013791 APPLICANT REQUESTS: an upgrade of his dishonorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 he joined the Army at a young age. He was very immature at the time. He has since lived a respectful life and he has been a productive member of the society. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army at 18 years and 8 months of age on 6 March 1985. He held military occupational specialty 13B (Cannon Crewmember). b. He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for: * 28 April 1986, wrongfully using marijuana; his punishment included, in part, reduction to E-1 * 29 December 1987, breaking restriction * 11 May 1988, failing to go at the time prescribed to his appointed place of duty c. On 15 August 1988, he was reprimanded by the Commanding General, 1st Infantry Division, Fort Riley, for refusing a lawfully requested test to measure blood alcohol content when there was substantial evidence of drunk driving. d. On 16 February 1989, he was arraigned at Fort Riley, KS on the following offenses at a general court-martial convened by the Commander, 1st Infantry Division: * Charge I, one specification of wrongfully appropriating the property of Fort Riley National Bank and Private JO and one specification of wrongfully stealing money and U.S. Postal money orders * Charge II, one specification of forging the name of JO to a personal check * Charge III, one specification of receiving stolen money orders (Not Guilty) * Additional Charge I, one specification of absenting himself from his unit from 8 to 22 August 1988 * Additional Charge II, one specification of wrongfully appropriating a motor vehicle * Additional Charge III, one specification of unlawfully uttering a forged check with intent to defraud e. The court sentenced him to reduction to the lowest enlisted grade of E-1, forfeiture of all pay and allowances, confinement for 6 years, and a dishonorable discharge. f. On 3 May 1989, the convening authority approved the sentence as provided for reduction to E-1, forfeiture of all pay and allowances, confinement for 6 years, and a dishonorable discharge, and except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. g. On 29 August 1989, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. h. Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 80, dated 24 April 1990, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's dishonorable discharge sentence executed. i. The applicant was discharged from the Army on 18 May 1990. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 3 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a dishonorable discharge. This form further shows he completed a total of 2 years, 6 months, and 6 days (including excess leave) of creditable military service. He had lost time from 8 October 1986 to 18 August 1987, 9 to 23 March 1988, and 8 August 1988 to 18 May 1990. He was awarded or authorized: Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and 1st Class (Sharpshooter) Marksmanship Qualification Badge with Rifle Bar. 4. By regulation (AR 635-200), a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general. The appellate review must be completed, and the affirmed sentence ordered duly executed. 5. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation. The ARBA Medical Advisor made the following findings and recommendations: a. Review of the applicant’s service treatment record shows he was admitted to the hospital from 18 September 1987 to 8 October 1987 for evaluation of chronic gastrointestinal issues. He was diagnosed with common varied immunodeficiency which had caused chronic giardiasis which in turn had caused the applicant to have a malabsorption syndrome. The applicant was returned to Ft. Riley where he was in the process of a bad conduct discharge. b. Even had his varied immunodeficiency failed medical retention standards at that time, the applicant’s actions noted in his first General Court Martial Order and the pending bad conduct discharge rendered him ineligible for Disability Evaluation System processing. Paragraph 4-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (13 December 1985) states: The case of a member charged with an offense, or is under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing unless (1) The investigation ends without charges. (2) The officer exercising proper court-martial jurisdiction dismisses the charge. (3) The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence. c. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a mental health or medical condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations) governs the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which 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. 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. 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. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013791 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1