IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210016216 APPLICANT’S REQUEST: * In effect, the reconsideration of his earlier requests to upgrade his bad conduct discharge * Permission to appear personally before the Board, via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * Separation Orders FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AC92-08334, on 10 March 1993, and AR20170015343, on 20 April 2021. 2. The applicant states, in effect, that while still at Fort Hood, TX, and due to medical reasons beyond his control, they placed him in the "Psych Ward" at the supporting military hospital; he remained there until his leadership decided to court-martial him for some unknown reason. a. The applicant argues that he may have been "crazy, (but) not dishonorable! Before all of this, I was a very good Soldier, (and) some would say even a great Soldier. Check my records"; he declares that he served his country with excellence. b. The applicant further points out that, before this, and at some point between 1981 and 1986, "there were both Boards that agreed, but corrections (were) never done"; he adds that he also incurred injuries during NBC (Nuclear, Biological, and Chemical) training at Fort Dix, NJ, but he does not specify the nature of those injuries. c. In a self-authored statement, the applicant cites sections within Title 38 (Veterans Benefits), United States Code (USC) and Code of Federal Regulations (CFR), and he adds the following: (1) The applicant includes comments by "The Soldier's Project," stating, "Veterans can't be denied VA (Department of Veterans Affairs) benefits, even if they left the military with 'bad' discharges, down to and including DD's, Dishonorable Discharges, IF they can present a 'credible' psychological evaluation that shows that they were 'insane' at the time of the misconduct! They don't have to show that the misconduct was 'caused' by the mental disorder (although such a link is required to establish that there was no 'dishonorable' service and to win service connection for any diagnosis; PTSD (post-traumatic stress disorder), anxiety, schizophrenia, etc. You don't need to get the military to 'upgrade' the discharge or wait for Congressional or Presidential clemency." (2) The applicant additionally submits an extract from 38 CFR (Pensions, Bonuses, and Veterans' Relief) showing the definition of insanity for VA claims. 3. The applicant's service records show: a. On 1 October 1982, the applicant enlisted into the U.S. Army Reserve (USAR) for 6 years; he was 26 years old. On 10 January 1983, the applicant entered initial active for training to complete his initial entry training. On 10 May 1983, following the award of military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist), the Army honorably released the applicant from active duty and returned him to his USAR unit. b. Effective 3 March 1985, the applicant's USAR unit promoted him to specialist four (SP4)/E-4. On 31 May 1985, the applicant's leadership awarded him the Army Achievement Medal for his demonstrated initiative, enthusiasm, and keen foresight, while serving as a communications section chief; the applicant's duty performance contributed to a satisfactory rating for the entire battalion. Effective 1 December 1985, the applicant's USAR commander appointed him as an acting sergeant. c. On 8 April 1986, following the approval of the applicant's Reserve Component release request, the applicant enlisted into the Regular Army for 3 years; at his enlistment, the applicant held the rank/grade of private first class (PFC)/E-3. Orders immediately transferred the applicant to Fort Gordon, GA for advanced individual training (AIT) in MOS 31M (Multi-channel Communications Equipment Operator); upon completion of training, the applicant continued on to his permanent duty station, at Fort Hood, TX, and he arrived at his unit, on or about 28 August 1986. d. On 10 August 1987, medical authority hospitalized the applicant and, effective 6 November 1987, orders reassigned the applicant to Fort Hood's medical holding detachment. Between 29 December 1987 and 26 January 1988, the applicant uttered 51 checks, totaling $3,850, for the procurement of currency; the bank returned the checks due to insufficient funds. On 28 January 1988, civil authority confined the applicant (the available record does not state the reason for the confinement); on or about 19 February 1988, civil authority released the applicant, but placed him back in civil confinement, on 15 March 1988. On or about 17 March 1988, civil authority returned the applicant to military control. Effective 6 April 1988, the applicant's chain of command placed him in military confinement. e. On 12 May 1988, and contrary to the applicant's pleas, a general court-martial convicted the applicant on 14 specifications of violating Uniform Code of Military Justice (UCMJ) Article 123a (Wrongfully Making and Uttering Worthless Checks with the Intent to Defraud). (1) The court sentenced the applicant to 3-years' confinement, total forfeitures, reduction to the lowest enlisted grade, and a bad conduct discharge; the court immediately remanded the applicant to confinement. (2) Orders subsequently reassigned the applicant to the U.S. Army Disciplinary Barracks at Fort Leavenworth, KS, and he arrived at Fort Leavenworth, on or about 26 May 1988. (3) On 28 June 1988, the general court-martial convening authority approved the sentence and, except for the bad conduct discharge, directed the sentence's execution. f. On 6 July 1988, Behavioral Health Specialist Staff Sergeant (SSG) Chief, CES, completed a confinement summary pertaining to the applicant: (1) On 6 April 1988, while SSG was on convalescent leave, the applicant arrived at the Fort Hood stockade; the leadership had placed the applicant in pre-trial confinement pending charges for dishonored checks, disrespect, and absence without leave (AWOL). During his confinement, the applicant projected all the blame for his situation on "all the incompetent fools" with whom he came in daily contact. (2) Military medical authority had previously hospitalized the applicant in the psychiatric ward and treated him for bipolar disorder. The doctors' treatment consisted of Lithium, and, SSG noted, the applicant had incurred the pending charges after the doctors had stabilized the applicant's condition. Nonetheless, the applicant continued to rant that the chain of command should not hold him responsible for his actions due to his bipolar disorder. By this point, the applicant's leadership had removed him from the unit and assigned him to the medical holding detachment, pending a medical discharge. The applicant managed to convince the cadre that he could not remember where he was, and that he should not be among the general population. (3) SSG assessment of the applicant was that the applicant was lazy and attempting to avoid any form of labor; in addition, the applicant tried to arrange for a symptom review, which would have addressed a possible seizure disorder, but the applicant kept reporting contradictory symptoms. (4) On occasion, the applicant could be convincing and demanding enough to warrant his escort to Community Mental Health Services; there, if the psychiatrists prescribed medication for sleep, the applicant would complain the doctors were medicating him against his will, and if they did not give him medication, the applicant complained the doctors were denying him of medical care. The applicant would fabricate symptoms entirely; on the date of a digital rectal exam, the applicant complained of diarrhea, despite having no abnormalities. He complained that the supporting finance office withheld his pay, but when a finance specialist arrived with a check, the applicant told the specialist to "tear up the damned check" because the amount was less than he had calculated. When he finally accepted the check, what had started at $2,000, ended up being $900, due to deductions for the applicant's dishonored checks and AWOL. (5) SSG found the applicant to be arrogant, hostile, manipulative, and completely uncooperative; the applicant effectively alienated the entire chain of command, and he had angered the Inspector General's office and the hospital staff. While in the psychiatric ward, the applicant allegedly threatened Doctor life, and, while at the Fort Hood stockade, the applicant did threaten SSG. Following SSG testimony that the applicant did not require a sanity board, the applicant's attorney called SSG saying that the applicant had instructed him to "call the stockade and tell them to tell SSG to keep away from me because I'll kill him." Based on the foregoing, SSG opined the applicant would be a "major source of distress for his assigned cadre (at Fort Leavenworth)." g. The applicant's available service record includes only the first page of a 14 October 1988 opinion, rendered by the U.S. Court of Military Review. In the opinion, the court noted, at the time of the offenses, medical authority had diagnosed the applicant with bipolar disorder, and military doctors were treating him with lithium to preclude extreme mood swings. At the applicant's trial, a psychiatrist opined the applicant's medical condition was in remission and had not contributed to the applicant's unlawful conduct. The court agreed the trial judge had not erred by denying defense's motion for a sanity board, but ultimately affirmed a reduction in the applicant's sentence; the court directed the approval of 2-years' confinement, total forfeitures, reduction to the lowest enlisted grade, and a bad conduct discharge. On 17 July 1989, following the applicant's petition to review the U.S. Court of Military Review's decision, the U.S. Court of Military Appeals denied the applicant's request. h. On 30 August 1989, a general court-martial order announced the completion of the applicant's appellate process and directed the execution of the applicant's bad conduct discharge; the order additionally stated the applicant would remain confined for the balance of his sentence at Fort Leavenworth, or elsewhere as directed by proper authority. i. On 29 September 1989, orders separated the applicant with a bad conduct discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 11 months, and 12 days of his 3-year enlistment contract, with lost time for three periods prior to his expiration term of service (ETS), and one period after ETS. j. On 3 January 1990, the applicant petitioned the Army Discharge Review Board (ADRB) requesting a medical discharge with an upgraded character of service. (1) In two self-authored statements, respectively dated 24 January and 19 August 1990, the applicant argued he was incompetent at the time he committed his misconduct. In support of his application, the applicant provided a police records check, showing no record of civil convictions or imprisonment, and a lawsuit he had initiated against the Fort Hood medical holding detachment for robbing him of his rights. (2) On 3 August 1990, the U.S. Army Reserve Personnel Center administratively closed the applicant's request, stating, because the applicant's separation resulted from a general court-martial conviction, the applicant needed to apply to the ABCMR for relief. k. On 19 August 1990, the applicant applied to the ABCMR, requesting the Board change his bad conduct discharge to a medical retirement, with an implied request for an upgraded character of service. (Per Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, Soldiers placed on the Permanent Disability Retired List received either an honorable or a general discharge under honorable conditions). (1) The applicant essentially argued the Army had negligently removed him from a pending medical separation to face a court-martial. During his trial, he was "totally unaware and totally incompetent to stand trial," the court showed bias and prejudice against him, and the court improperly denied him a sanity board hearing. The applicant additionally contended he had had money in two accounts, and the medical holding detachment finance officer and managers at a Fort Hood bank improperly removed those funds from those accounts. Because of the amount of medication doctors were giving him, he was unable to defend himself, and it was not until he received a copy of his record of trial that he started to understand fully what had transpired. The applicant further maintained his entire term of service in the Army had been without blemish and he had not previously required any medication. (2) The applicant wrote three times to the President of the United States, presenting similar arguments to those submitted to the Board and asking the President to intercede on his behalf. (3) On 10 March 1993, after taking into account the applicant's evidence and reviewing his service record, the Board denied the applicant's request. Citing paragraph 1-2 (Applicability), AR 635-40, the Board pointed out that Soldiers charged with an offense for which a court could dismiss or issue a punitive discharge were ineligible for referral into the disability evaluation system. The Board further determined that the charges brought against the applicant warranted trial by general court-martial, and those charges carried maximum punishments of a dishonorable or bad conduct discharge. Additionally, the applicant's assertions that the leadership removed him from the hospital without regard for his condition, and that those involved in his trial were biased and prejudiced against him found no support in the applicant's service record. l. On 11 July 2017, the applicant requested the Board reconsider its earlier denial and grant him a medical discharge and, in effect, an upgraded character of service. (1) The applicant stated, in effect, that he had enlisted for three tours of duty in the military, but his leadership imprisoned him at Fort Leavenworth for offenses he did not commit. Subsequently, he was exonerated of all charges, but what he experienced had caused him undue hardship; he developed some unknown psychological behaviors for which his physicians had no explanation and, as a result, his condition had gone untreated. He had since completed a college degree and was teaching in the school system; additionally, he had married and become a productive citizen within his community, but he was having a difficult time coping with his disabilities and the work environment. He contended the Army owed him back pay for any disability award due to the mistakes the Army had made. (2) At some point prior to 20 April 2021, the Army Review Boards Agency (ARBA) Medical Advisor reviewed the applicant's supporting documents and the available medical information. (a) The ARBA Medical Advisor found the applicant's separation packet indicated a previous diagnosis and hospitalization for bipolar disorder, and, at the time, the applicant was undergoing medical board processing; in addition, a psychiatrist had reported the applicant was stable on his medication when he committed his misconduct. (b) A review of the applicant's VA medical records revealed VA had evaluated the applicant in March 2002, during which the applicant had reported previous diagnoses for PTSD and bipolar disorder and that he had been receiving treatment for his bipolar disorder for the past 10 to 12 years at a civilian facility. The applicant further stated he had undergone psychiatric treatment in 1974, following his exposure to combat in Vietnam; however, the applicant's service record did not comport with the applicant's claimed Vietnam service. The VA provider's diagnosis was bipolar disorder, alcohol abuse, and cocaine dependence. (3) On 20 April 2021, the Board considered the applicant arguments, the applicant's service record, and the assessment conducted by the ARBA Medical Advisor. The Board found the applicant's behavioral health condition did not mitigate his misconduct, and that the evidence was insufficient to warrant a change in the applicant's separation. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The law does not authorize the Board to set aside a conviction but only empowers it to change the severity of the sentence imposed in the court-martial process. b. The ABCMR does not grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. 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. A review of his available hardcopy medical record indicates the applicant was diagnosed with Bipolar Disorder stabilized on medication and placed in the Medical Hold Company awaiting medical discharge. A summary from confinement dated 6 Jul 1988 indicates the applicant demonstrated manipulative behavior with cadre and medical staff. He would report medical symptoms that were not consistent with physical findings. A review of his service record indicates his treating psychiatrist noted the applicant was on a therapeutic dosage of lithium to preclude extreme mood swings. He testified that the applicant’s manic depressive disorder was in remission and not contributory to his misconduct. A review of JLV indicates the applicant requesting medication and housing support from the VA starting in March 2000. He was seen in the ER on 5 Mar 2002 requesting admission due to suicidal ideation and hearing voices. He ran out of medication he received from a civilian hospital. He reported nightmares and flashbacks from his service in Vietnam when he was in combat. Based on his service record he did not serve in Vietnam. He reported daily use of cocaine and drinking a fifth of whiskey every day. He was diagnosed with Bipolar Disorder, Cocaine Dependence, and Alcohol Abuse. He was discharged from the ER the next day without a psychiatric admission. He was next seen at the VA on 11 Jul 2018. He was seen in the ER with shoulder pain and spasms in his neck. He was treated in the ER and discharged. There are no other medical encounters in his record. He does not have a service connected disability rating. The applicant asserts he was medically unsound. 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 behavioral health diagnosis at the time of his discharge. Bipolar Disorder is not a mitigating factor for the misconduct that led to his conviction and discharge. 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: 1. 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. The 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 medical review, the Board concurred with the medical advisory official who found bipolar disorder was not a mitigating factor for the misconduct that led to his conviction and discharge. The Board found insufficient evidence of in-service mitigating factors for the misconduct 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. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 to amend the decisions of the ABCMR set forth in Docket Numbers AC92- 08334 on 10 March 1993, and AR20170015343 on 20 April 2021. 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, USC, section 1552 states, with respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, corrections of any military records of the Secretary's Department may extend only to those 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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (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 the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (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. Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) stated a Soldier could only receive a bad conduct discharge pursuant to the approved sentence of a general or special court-martial, and then only after proper authority had ordered the discharge's execution following the completion of an appellate review. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 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// ABCMR Record of Proceedings (cont) AR20210016216 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1