IN THE CASE OF: BOARD DATE: 13 October 2022 DOCKET NUMBER: AR20220001655 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Photocopy of a Veterans Administration (VA) Mental Health service line appointment Letter * Character Reference Letters (five) FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20200000875 on 17 July 2020. 2. The applicant states: a. He started in the Army as a Specialist/E-4, he was stationed at Fort Rucker, Alabama in 1993. He was in an incident with SGT and was given a BCD. He served jail time in Fort Benning, Georgia, sentenced for three months but he served only one month. Afterwards, he felt ashamed about the charge and did not know he could appeal it. His BCD was changed into a dishonorable discharge which is worse. b. He started to have some health issues and went to the VA office. During his physical the doctor discovered that his thyroid gland was swollen on the right side. It was suggested that he see a psychiatrist. His thyroid issue started at the end of 2018 and his follow-up was in 2019. He is asking the board to help clear his name. He has worked very hard, served his country, pays taxes, and supports his family. Due to his discharge, it is very difficult for him to get the medical care that is afforded to all Veterans. He asks that his discharge be reconsidered; he is able and prepared to state his case to clear his name. 3. The applicant enlisted in the Regular Army on 20 July 1989, for a four-year service obligation. He reenlisted on 25 November 1992 in the rank of specialist/E-4. 4. Before a general court-martial on 23 September 1994, at Fort Rucker, Alabama, the applicant was found guilty of: a. Violating Article 120 of the Uniform Code of Military Justice (UCMJ); specifically, one specification of rape on 14 February 1994. b. Violating Article 134 of the UCMJ; specifically, one specification of wrongfully commit an indecent act on 14 February 1994. c. Violating Article 107 of the UCMJ; specifically, three specifications of making a false official statement on 14 February 1994 and 15 February 1994 and signing a false official statement on 15 February 1994. 5. The court sentenced the applicant to reduction to the grade of private/E-1, confinement for 3 months and to be separated from service with a BCD. The sentence was approved on 2 December 1994 and the record of trial was forwarded for appellate review. 6. The U.S. Army Court of Military Review affirmed the findings and sentence on 1 April 1996. 7. General Court-Martial Order Number 92, issued by Headquarters U.S. Army Armor Center Fort Knox, Fort Knox, KY on 15 October 1996, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 8. The applicant was discharged on 12 March 1997. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial, with his service characterized as bad conduct. His awards and decorations include the Army Commendation Medal, Army Good Conduct Medal, and the Noncommissioned Officer Professional Development Ribbon (Primary Level). 9. The applicant provides a letter detailing his appointment with the mental health service line on 1 April 2020 at the VA outpatient clinic. Additionally, he provides character reference letters attesting to his affiliation and dedication to the Junior ROTC program. His dependability, responsibility, and honesty to his family and community. These letters also note his service to the community and the congregation at his church. 10. The applicant applied to the ABCMR to change the authority and characterization of his discharge; after consideration of the available evidence, the ABCMR denied the applicant's request on 17 July 2020. 11. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 12. 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. 13. Department of Defense 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, his service record, and his statements. 14. MEDICALREVIEW: Applicant is applying to the ABCMR requesting an upgrade of his Bad Conduct Discharge. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, and the VA electronic medical record (JLV). a. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review and no hard copy medical documentation from the time of service was submitted for review. b. Review of VA electronic medical record (JLV) indicates that the applicant is not service connected, and the VA has not diagnosed the applicant with any BH conditions. c. After review of all available documentation, there is insufficient evidence of any mitigating BH conditions. There is no evidence of any in service BH diagnoses, and the VA has not diagnosed applicant with any BH conditions. d. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No. There is insufficient evidence of any mitigating BH conditions. There is no evidence of any in service BH diagnoses, and the VA has not diagnosed applicant with any BH conditions. (2) Did the condition exist or experience occur during military service? (a) N/A. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, an advisory opinion. the reason for his separation and whether to apply clemency. 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. The Board concurred with the advisory official finding there is no evidence of any in service BH diagnoses, and the VA has not diagnosed applicant with any BH conditions. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20200000875 on 17 July 2020. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided 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 provided 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. Chapter 3 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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. 6. 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. 7. 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//