IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20220002803 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded, and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Reference Letters (seven) * Certificate of Completion (five) * Tech Challenge Award * Employee of the Quarter * Certificate of License of Ordination * Personal Resume FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 prior to entering the Army, he was physically and sexually abused by his parents. He joined the military to escape the abuse. Mental health counseling was not popular after having a tumultuous disorderly and dysfunctional family upbringing. This caused him to act out in the military. He became determined to overcome his trauma, denial, and shock. He worked on recovery to help others in need. He has worked in the mental health/behavior health field for over 38 years. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and other mental health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 3. The applicant enlisted in the Regular Army on 12 September 1978, for a period of 3 years. Upon completion of required training, he was awarded military occupational specialty 11C (Indirect Fire Infantryman). He was stationed at Fort Stewart, GA on or about 18 December 1978. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * 9 May 1979, being absent without leave (AWOL), from on or about 16 April 1979 through on or about 22 April 1979 * 19 June 1979, for failure to obey a lawful order given by a superior noncommissioned officer on or about 6 June 1979 and being AWOL, from on or about 11 June 1979 through on or about 12 June 1979 * 30 October 1979, failure to go at the prescribed time to his appointed place of duty, on or about 9 October 1979 * 2 September 1980, failure to go at the prescribed time to his appointed place of duty, on or about 26 June 1980, 27 June 1980, and 10 July 1980, and for being AWOL from on or about 3 July 1980 through on or about 8 July 1980 5.. Before a special court-martial on or about 20 March 1980, at Fort Stewart, GA, the applicant was found guilty of: a. Charge I: Violating Article 92 of the UCMJ; specifically, one specification of disobeying a lawful order given by a commissioned officer, on or about 6 November 1979. b. Charge I: Violating Article 86 of the UCMJ; specifically, two specifications of without authority being AWOL, from on or about 9 January 1980 through on or about 24 January 1980 and on or about 31 January 1980 through on or about 6 February 1980. c. Charge II: Violating Article 87 of the UCMJ; specifically, one specification of missing movement which he was required to do, on or about 11 January 1980. d. Charge III: Violating Article 90 of the UCMJ; specifically, one specification of receiving a lawful command from a superior commissioned officer did willfully disobey, on or about 6 February 1980. 6. The court sentenced the applicant to separation from service with a BCD. The sentence was approved on 2 July 1980 and the record of trial was forwarded for appellate review. 7. The U.S. Army Court of Military Review affirmed the findings and sentence on 27 October 1980. 8. The applicant elected not to have a separation physical on 7 February 1981. 9. Special Court-Martial Order Number 25, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, GA on 12 February 1981, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 10. The applicant was discharged on 27 February 1981, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as bad conduct. He was credited with 2 years, 2 months, and 21 days of net active service this period. 11. The applicant provides: a. Character reference letters attesting to him being an experienced mental health professional who is responsible, has a positive attitude, loyal, impeccable attendance with a great work ethic, and dependable. b. Several post-service certificates of training, pertaining to mental health, basic life support/cardiopulmonary resuscitation and automated external defibrillator certification. As well as an employee of the quarter award, a certificate and license of ordination, and a resume. 12. 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. 13. 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. 14. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting his bad conduct discharge (BCD) be upgraded. He contends that traumas existing prior to military service caused him to act out in the military. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory February are the following: 1) The applicant enlisted into the Regular Army 12 September 1978; 2) On 20 March 1980 before a special court-martial at Fort Stewart GA, he was found guilty of 3 specifications; 3) He was discharged on 27 February 1981 under provisions of AR 635- 200, Chapter 11, as a result of court-martial. b. Military medical documentation reviewed includes the Medical Examination for Separation/Retirement Statement of Option, dated 7 February 1981, whereby the applicant declined a separation medical examination. A review of JLV is void of the applicant receiving VA medical treatment and he is not service connected. The applicant did not provide supporting documentation of a trauma related disorder. The applicant contends a history of childhood physical and sexual abuse, perpetrated by his parent. This abuse history reportedly caused him to act out while in the military. It should be noted that the applicant is not contending a potentially traumatic experience having occurred while on active duty, nor has he contended having an experience while on active duty that exacerbated a preexisting condition. c. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant had experiences that partially mitigates his misconduct. The applicant contends a history of childhood physical and sexual abuse, perpetrated by his parents, contributed to his misconduct. d. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes. The applicant contends a history of childhood physical and sexual abuse contributed to his misconduct while in the military. (2) Did the condition exist or experience occur during military service? (a) No. According to the applicant, the experiences occurred prior to military service but impacted his misconduct during service. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partial. There is a nexus between trauma-related disorders and difficulty with authority; each of the court-martial specifications were related to difficulty with authority figures. However, the applicant contended traumatizing experiences happened prior to services and he does not contend having experiences while on active duty that contributed to or exacerbated the previously existing condition. Also, he provided no documentation supporting a trauma-related diagnosis existed prior to, during, or after military service. (b) Since being separated from service, the applicant has apparently worked diligently to better himself and help others with BH related conditions, as demonstrated by his 38 years working in the BH field, multiple certificates, and several letters attesting to his character and contributions to the community. It is this examiner’s contention that this information also be considered in the characterization determination. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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. Upon review of the applicant’s petition and available military records, the Board found the discharge to be harsh and found sufficient evidence an injustice which would warrant a change in the applicant’s discharged. Based on this, the Board granted relief to upgrade the applicant’s discharge to under other than honorable discharge (UOTH). 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 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show a characterization of under other than honorable (UOTH). 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): Not Applicable 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 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. 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 11 provided that an enlisted person would be given a bad conduct discharge 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. 3. 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. 4. 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. 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//