IN THE CASE OF:  
 
  BOARD DATE: 16 December 2022 
 
  DOCKET NUMBER: AR20220004885 
 
 
APPLICANT REQUESTS: in effect, an upgrade to his characterization of service from bad conduct to honorable.  
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record), 1 February 2022 

• Emerald Coast Behavioral Hospital medical profile, 20 August 2021 

• Life Management Center medical discharge referral, 1 September 2021 

• Medical prescriptions (3), 1 September 2021 


 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect, he was not a deserter and he went into absence without leave (AWOL) status due to his post traumatic stress disorder (PTSD) during his second enlistment. Furthermore, he states that his court martial paperwork is wrong, and he needs an upgrade to his characterization of service in order to receive medical benefits for his PTSD.  
 
3.  The applicant enlisted in the regular Army on 16 June 1999. 
 
4.  DA Form 4187 shows the applicant's duty status was changed from AWOL to Dropped From Rolls (DFR) on 5 August 2001. 
 
5.  DA Form 553 dated 6 August 2001, shows the applicant's immediate commander declared him a deserter for absenting himself from his unit on or about 6 July 2001, with the intent to remain away permanently.  
 
6.  DD Form 458 dated 6 August 2001, shows court martial charges were preferred against the applicant for absenting himself from his unit on or about 6 July 2001. 
7.  On 6 November 2003, the applicant was apprehended by civil authorities and returned to military control.  
 
8.  Special Court Martial Order Number 42, dated 27 August 2004, shows the applicant was convicted of the Charge and its specification of absenting himself from his unit on or about 6 July 2001 and did remain absent until on or about 6 November 2003. His sentence consisted of reduction to the grade/rank of Private (PVT)/ E-1, to be confined for nine months, and to be discharged from the service with a Bad-Conduct discharge. The sentence was adjudged on 11 March 2004. 
 
9.  The applicant’s record contains two DA Forms 4187, which show the below changes to his duty status as a result of his court martial: 
 
• Present for duty (PDY) to Confined by Military Authorities – 11 March 2004 

• Confined by Military Authorities to PDY – 15 October 2004 


 
10.  Special Court-Martial Order Number 57, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma on 29 July 2005, noted the sentence had been finally affirmed and ordered the bad conduct discharge be executed.  
 
11.  The applicant was discharged on 10 February 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, (Active Duty Enlisted Administrative Separations) chapter 3, by reason of court-martial (Other), in the rank/grade of private (PV1)/E-1, and his service was characterized as bad conduct (Separation Code JJD, Reentry Code 4). He completed 6 years and 21 days of net active service during the covered period and had lost time from 11 March 2004 to 14 October 2004. Additionally, his DD Form 214 does not list any personal decorations or awards.  
 
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.  By regulation AR 635-200, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 
 
14.  There is evidence the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board’s 15-year statute of limitations. A letter dated 31 July 2013 shows the ADRB determined the applicant was properly and 
equitably discharged and his request for a change in the character and/or reason of his discharge was denied.  
 
15.  The applicant provided a copy of his discharge referral from Life Management Center which shows he was discharged on 1 September 2021. Additionally, the applicant provided 3 copies of medical prescriptions.  
 
16.  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 military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   
 
    a.  The applicant is applying to the ABCMR requesting an upgrade of his 10 February 2006 bad conduct discharge stating he went absent without leave due to PTSD. 
 
    b.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  The applicant’s DD 214 shows he entered the regular Army on 29 April 2000 and was discharged on 10 February 2006 under the separation authority provided by chapter 3 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Court-Martial.  His DD 214 does not lists any deployments.   
 
    c.  The request for a discharge upgrade was denied by the ADRB on 31 July 2013 (AR201300002161).  Rather than repeat their findings here, the board is referred to the record of proceedings for that case.  Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. 
 
    d.  A Special Court-Martial Order dated 27 August 2004 shows the applicant was found guilty of desertion from 6 July 2001 to 6 November 2003.  The sentenced adjudged on 11 March 2004 was reduction to the grade of Private (E-1), to be confined for 9 months, and to be discharged from the service with a bad-conduct discharge.  The bad conduct discharge was not executed. 
 
 
    e.  A Special Court-Martial Order dated 29 July 2005 stated: 
 
“… the sentence of reduction to the grade of Private E1, confinement for 9 months, and a Bad-Conduct Discharge, adjudged on 11 March 2004, as promulgated in Special Court-Martial Order Number 42, Headquarters, Fort Stewart, Fort Stewart, Georgia 31314, dated 27 August 2004, has been finally affirmed. The accused was credited with 2 days of confinement credit against the sentence to confinement. That portion of the sentence extending to confinement has been served. Article 71(c) having been complied with, the Bad-Conduct Discharge will be executed.” 
 
    f.  The medical documents submitted with the application shows the applicant had been admitted to Emerald Coast Behavioral Hospital from 20 August 2021 to 1 September 2021.  A discharge diagnosis is not given.  His discharge medications were Seroquel, a medication to treat mental/mood conditions such as schizophrenia, bipolar disorder, sudden episodes of mania or depression associated with bipolar disorder; Trileptal, a medication for treating seizure disorders; clonidine, an antihypertensive medication; and ibuprofen. 
 
    g.  There are no encounters in AHLTA.  JLV shows no diagnosed mental health conditions or clinical encounters.   
 
    h.  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 UCMJ violation and bad conduct discharge; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge.  Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge.   
 
    i.  It is the opinion of the Agency medical advisor that an upgrade of his discharge is not warranted. 
 
Kurta Questions: 
 
      A. Did the applicant have a condition or experience that may excuse or mitigate the discharge?  
 NO 
B. Did the condition exist or experience occur during military service? 
 N/A 
C. Does the condition or experience actually excuse or mitigate the discharge? 
 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 
 
:xx :xx :xx 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. 
 
  12/27/2022

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, U.S. 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 
 
 a.  Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 
 
 b.  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. 
 
 c.  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. 
 
3.  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 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 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 regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority.  
 
 a.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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. 
 
5.  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. 
 
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