IN THE CASE OF: BOARD DATE: 22 July 2022 DOCKET NUMBER: AR20220000528 APPLICANT’S REQUEST: An upgrade of his bad conduct discharge (BCD), due to his post-traumatic stress disorder (PTSD) related to his deployment in support of Operation Desert Storm. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * an undated self-authored statement * Army Review Boards Agency (ARBA), Case Management Division (CMD), request for medical documents to support his claim of PTSD * Applicant response email to CMD’s request for supporting documents FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, in effect: a. He is requesting an upgrade, because he believes his charges were cruel, his punishment was unusual, and discharge was an injustice. His court appointed attorney did nothing to defend him or his honor, thus he had no defense. After his deployment to Desert Storm, he was different, could no longer deal with reality, could not sleep, was having nightmares, and turned to drugs and drinking to numb the pain. b. He questions why he was even deployed when he had a permanent profile. After his descent to the bottom of his life and military career, he became homeless, helpless, and hopeless for 20 years. His BCD was more of a life sentence. After 27 years he got the courage and strength to write the Board and asks for consideration of his full military career prior to Desert Storm. He did not do anything against his country, he only hurt his family. He lost his wife and kids. Now he wants to make his kids proud of him again. He asks the Board to consider his request so he can proudly retire from the military, he has over 20 years of honorable service including his Air Force Reserve time. 3. The applicant provides an email response to CMD’s request for medical documents to support his of PTSD claim. He states in his email that he does not have any further documents to support his application. 4. The applicant's service record shows: a. The applicant’s service record contains a DD Form 214 (Report of Separation from Active Duty) showing he served in the U.S. Air Force, for 3 years, 10 months and 12 days, and was honorably discharged on 31 May 1976. b. On 7 April 1981, the applicant enlisted in the U.S. Army Reserve, Delayed Entry Program, while awaiting his 26 May 1981, enlistment into the Regular Army. On 26 May 1981, the applicant enlisted into the Regular Army for a 3-year service obligation. His DA Form 2-1 (Personnel Qualification Record -Part II) shows that upon completion of his initial entry training, the award of military occupational specialty (MOS) 76C (Prescribed Load List Clerk) [later changed to 92A Automated Logistical Specilaist], he was assigned to Fort Lewis, WA on or about 3 August 1981, and reported to his unit on 28 August 1981. c. On 17 November 1982, the applicant was honorably discharged for immediate reenlistment. On 18 November 1982, he reenlisted with a 4-year service obligation, and was reassigned to Germany on 7 December 1982. He served in Germany from 12 January 1983 until 7 January 1986, when he was reassigned to Fort Bragg, NC. d. On 2 February 1986, he reported to his unit at Fort Bragg, NC, and was promoted to sergeant SGT/E5 on 5 May 1986. On 27 August 1986, the applicant was honorably discharged for immediate reenlistment. On 28 August 1986, he reenlisted with a 3-year service obligation, and was selected for promotion to Staff Sergeant (SSG), with a primary MOS (PMOS ) 76Y, with an effective date of 6 August 1987. e. On 10 May 89, the applicant was placed on a permanent profile due to mild arthritis in both knees, his profile limited his duties to run at his own pace and distance over 2 miles and no airborne operations. f. On 22 June 1989, a MOS/Medical Retention Board (MMRB) was convened at Fort Bragg, to review the applicant’s records, reports, and other pertinent information relating to his medical condition and retainability. The Board found: [The applicant’s] physical impairment (mild arthritis in both knees) does not prevent him from performing as a Unit Supply Specialist (76Y30). The board concurred with the commander’s written evaluation [not available for review], the medical advisor’s review of [the applicant’s] condition and the Soldier’s statements on his ability to perform in his PMOS. The board recommends retention in PMOS. g. On 17 July 1989, the findings, and recommendations of the MMRB were approved. h. On 18 July 1989, the applicant was honorably discharged for immediate reenlistment. On 19 July 1989, he reenlisted with a 6-year service obligation. i. On 30 August 1990, the applicant was deployed in support of operation Desert Storm, until his return to Fort Bragg on 28 March 1991. j. On 21 March 1992, the applicant’s commander initiated a Report to Suspend Favorable Personnel Actions (FLAG) against the applicant for a pending investigation, however no other details are available for review. k. On 1 October 1992, Special Court-Martial Number 26, issued by Headquarters, XVIII and Fort Bragg, Fort Bragg, NC, convicted the applicant of the following specifications: * wrongfully possessing some amount of cocaine, on or about 21 March 1972 * wrongfully using cocaine between on or about 21 March 1992 and 19 June 1992 l. The applicant's sentence included confinement for 15 days, and reduction to the grade of private E-1. On 13 October 1992, he was confined to military authorities. Upon, completion of his sentence he was released and reassigned to 546th Transportation Company, on 12 October 1992. The convening authority approved the findings and sentence on 1 December 1992, and he directed his punishment duly executed. m. The applicant’s DA Form 2-1 shows the following: * he was reduced to Private E-1, on 1 December 1992 * he was listed as absent with leave from 16 December 1992 thru 21 December 1992 * he was listed as in pretrial confinement from 22 December 1992 thru 27 April 1993 n. Before a general court-martial on 24 March 1993, at Fort Bragg, NC, the applicant was found guilty of the following violations of the Uniform Code of Military Justice (UCMJ): * absenting himself from his unit without authority from on or about 16 December 1992 until 22 December 1992 * impersonating a noncommissioned officer, on or about 22 December 1992 * wrongfully using cocaine between on or about 20 December 1992 and 23 December 1992 o. The applicant's sentence included 5 months confinement and separation from service with a BCD. Only so much of his sentence as provided for 5 months confinement was approved on 8 July 1993, except for that portion extending to the BCD, and was ordered executed. The record trial shows he was credited with completing 92 days pretrial confinement and he was found not guilty of 1 specification due to a motion by his defense. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. p. On 28 April 1993, the applicant was released from military confinement and placed on involuntary excess leave while awaiting the U.S. Army Court of Military Review decision in his case. q. On 30 July 1993, the U.S. Army Court of Military Review affirmed the findings and sentence, in his case. r. On 14 February 1994 General Court-Martial Order Number 48, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. s. On 14 March 1994, the applicant was separated with a bad conduct discharge. His DD Form 214 shows he completed 12 years, 4 months, and 25 days of net active service this period, with 3 years, 10, months, and 12 days of prior active service; and lost time from 921001 – 921012; 921216 – 921221; and 921222 - 930427. (1) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: * Southwest Asia (SWA) Service Medal (2 Bronze Stars) * Army Commendation Medal (2ND OLC) * Army Good Conduct Medal (3RD Award) * Air Force Good Conduct Medal * National Defense Service Medal * NCO-Professional Development Ribbon (Basic Level) * Army Service Ribbon * Overseas Service Ribbon (2ND Award * Driver and Mechanic Badge with Driver-W Component Bar * Kuwait Liberation Medal (2) Item 18 (Remarks) reflects the applicant's continuous honorable service from 810526 through 890718; Immediate Reenlistments This Period: 810526 – 821117, 821118 – 860827, 860828 – 890718; and Service in SWA 30 Aug 1990 to 28 Mar 1991. 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. The applicant contends, in effect, that his defense counsel was inadequate, and his post deployment PTSD from Desert Storm led to him abusing drugs and alcohol, and ultimately his discharge. His service records show his defense counsel’s motion led to at least 1 finding of not guilty during his general court-martial and he was previously convicted of a special court-martial. The applicant’s permanent profile for mild arthritis in both knees did not preclude him from being deploying, a MMRB determined he was fit for retention in his MOS on 22 June 1989. b. 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 ABCMR is not empowered to set aside a conviction. Rather, the law only authorizes the Board 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. 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 during his time in service. A review of his service record indicates the applicant’s case went before the Medical Retention Board on 22 Jun 1989. It determined his mild arthritis in both knees did not prevent him from performing his MOS duties. It recommended retention in his primary MOS. A review of JLV indicates the applicant has received services in the VA starting in March 1999. He has not been diagnosed or treated for a behavioral health disorder. He does not have a service connected disability rating. The applicant asserted PTSD as an issue related to his upgrade request. No medical documentation was provided for review. 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 behavioral health condition to consider with respect to mitigation. In addition, if subsequent documentation of a PTSD diagnosis were to be provided, PTSD is not a mitigating factor for impersonating a non-commissioned officer. a. 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 experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical review and published DoD 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 medical records and the review and conclusions of the reviewing official. The Board concurred with the medical reviewer finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, 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 Army Board for Correction of Military Records (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. 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. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. 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 stated a Soldier would receive a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate authority must have completed the review process, and the affirmed sentence ordered duly executed. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000528 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1