IN THE CASE OF: BOARD DATE: 8 December 2022 DOCKET NUMBER: AR20220005580 APPLICANT’S REQUEST: The applicant requests an upgrade of his bad conduct discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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, in effect, his bad conduct discharge should be upgraded because he was advised by his Judge Advocate General (JAG) counsel not to discuss some things that were going on in his life at the time. These things were important to him, but he followed his counsel's advice. He lost his family because of this. The applicant indicates on his application that post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. He did not elaborate. 3. Having had prior honorable service in the Regular Army and the U.S. Army Reserve, the applicant enlisted into the Regular Army on 4 April 1984, for a period of 3 years in the rank/grade of private first class/E-3. He was promoted to specialist-four (SP4)/E-4 on 5 September 1984. 4. Orders 329-79, issued by U.S. Army Regional Personnel Center, Nurnberg, Germany on 11 December 1985, reassigned the applicant to Fort Riley, Kansas. Orders 58-48, issued by the U.S. Army Confinement Facility, Mannheim, Germany on 18 December 1985, authorized travel at government expense to Fort Knox, Kentucky as a prisoner for further confinement. 5. On 29 January 1986, the applicant was notified of the General Court-Martial Convening Authority's intent to consider placing him on involuntary excess leave pending appellate review of his case. He acknowledged receipt on the same date and expressed his desire not to submit matters for the convening authority's consideration. 6. Special Court-Martial Order (SPCMO) Number 10, issued by Headquarters, 1st Armored Division, Germany on 3 February 1986, shows the applicant was arraigned and tried at a SPCM, adjudged on 11 December 1985. a. The applicant was found guilty of violation of Article 121 (larceny) for stealing $550.00, the property of another Soldier, on or about 31 October 1985. b. His sentence consisted of reduction from SP4 to Private/E-1, confinement for 4 months, forfeiture of $426 pay per month for 4 months, and to be discharged from service with a bad conduct discharge. c. On 3 February 1986, the sentence of confinement for 3 months, forfeiture of $426.00 pay per month for 3 months, and reduction to the lowest enlisted grade was approved and except for the bad conduct discharge, ordered to be executed. The record of trial was forwarded for appellate review. 7. The applicant was released from confinement on 21 February 1986 and immediately placed on involuntary excess leave pending affirmation of his case. 8. The U.S. Army Court of Military Review affirmed the findings and sentence on 7 April 1986. 9. SPCMO Number 138, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky on 8 July 1986, noted the sentence was finally affirmed and the bad conduct discharge was ordered to be executed. 10. The applicant was discharged on 29 July 1986. 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. His service was characterized as bad conduct, with Separation Program Designator (SPD) Code "JJD" and reentry eligibility (RE) Code "4." 11. The applicant's record is void of and he has not provided evidence showing he was diagnosed with PTSD or any other behavioral health or medical condition during his period of service. A representative of the Army Review Boards Agency, Case Management Division sent an email to the applicant requesting that he provide medical documents to support his PTSD and TBI conditions. To date, the he has not responded. 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. Army Regulation 635-200 provides that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed, and the affirmed sentence ordered duly executed. 14. 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. 15. 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. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his bad conduct discharge to honorable. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: (1) The applicant asserts, in effect, his discharge should be upgraded because he was advised by JAG counsel not to discuss things that were going on in his life at the time. He indicates on his application that PTSD and TBI are related to his request as contributing and mitigating factors in circumstances of separation. He did not elaborate. (2) Following prior honorable service in the RA and USAR, applicant reenlisted in RA on 4 April 1984. (3) Per Special Court-Martial Order Number 10 dated 3 February 1986, applicant was found guilty of violation of Article 121 of the UCMJ (larceny) for stealing $550.00, the property of another soldier, on/about 31 October 1985. (4) The applicant was discharged on 29 July 1986 with DD214 showing discharge per AR 635-200 Chapter 3, as a result of court-martial. Service was characterized as bad conduct. (5) The applicant’s record is void of and he has not provided evidence showing he was diagnosed with PTSD or any other BH or medical condition during his period of service. ARBA Case Management Division requested he provide medical documents to support his asserted conditions, but to date he has not responded. c. The military electronic medical record, AHLTA, was not reviewed given lack of use as an EMR during his periods of service. d. A review of VA records via JLV indicates he is 70% service connected overall for cold injury residuals, impaired hearing, paralysis of external popliteal nerve, paralysis of external cutaneous nerve, and tinnitus. There is no evidence of service connection for PTSD, another mental health condition, or TBI. There is evidence of current memory impairment noted in record, with 2 November 2022 MRI referencing history of MVA with head trauma in July 2021 with mild memory impairment; MRI findings indicate “No significant abnormality evident on noncontrast MRI of the brain.” Neurology Consult dated 26 October 2022 states “he first began to notice issues with short term memory and recall ~8-12 months ago” with subjective perception that issues began following MVA July 2021. Neuropsychological Evaluation dated 27 September 2022, to assess subjective self-reports of memory loss “over the course of the past year,” indicates MVA as noted above and work-related stressors. At the time, he denied experience of depression or anxiety and “he denied any history of symptoms consistent with a depressive episode.” Of note related to his assertion related to circumstances of his discharge, the neuropsychological evaluation indicates “he denied any history of sustaining a TBI despite the MVC in 2021 and his service in the Army in tanks.” His diagnosis based on the evaluation was Unspecified Mild Neurocognitive Disorder. Psychiatrist Note of 20 May 2019 indicated a history of adjustment disorder and substance use in remission. A 28 May 2019 Individual Therapy Note referenced “feeling like he had some PTSD symptoms. However, he was clear that he had not been in a war, nor in firefights with other soldiers” and went on to describe some anxiety-related concerns. Diagnosis at this time was Adjustment Disorder. Records indicate enrollment in a VA domiciliary program between 6/12/2012 and 8/30/2012 with an Axis I diagnosis of mixed substance abuse in sustained remission. Discharge summary indicates in part “He has a history of felony drug convictions for possession with intent to deliver and sell. He also has been incarcerated for probation violations. Mark identifies his abstinence from drugs and alcohol for the past 13-1/2 years. He speaks of his "hustling" as somewhat of a hobby until his legal history began to have a negative impact on his life. Since August 2010, he has been moving between his daughter's, mother's and grandmother's apartments.” History and Physical dated 3 September 2013 indicated he had recently been released from a federal corrections facility where he was incarcerated for conspiracy and was scheduled for readmission to the domiciliary. e. Review of supporting documents does not reveal additional medical or psychiatric records submitted by the applicant. Applicant Medical Prescreening Form dated 15 May 1984 indicated “no” to ever having been treated for a mental health condition or having an addition to drugs or alcohol. ADAPCP Client Progress Reports found in supporting documents were reviewed, with indications of “program completed,” individual counseling/Track II and retention on Active Duty (dated 17 June 1985). ADAPCP Client Intake Record is of poor legibility but appears to reference potential cannabis concerns. f. A review of iPERMS for possible additional data associated with the applicant did not return any records. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts PTSD and TBI as mitigating conditions associated with his discharge. 2. Did the condition exist or experience occur during military service? Yes, per applicant’s assertion as above. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant has asserted mitigation due to TBI and PTSD and his assertion alone is worthy of consideration by the Board. However, it is the opinion of the BH advisor that he has not provided, nor do his records include, compelling data to support his assertions regarding PTSD, another mental health condition, or TBI at the time of his service and discharge. Furthermore, PTSD and TBI (at least a mild TBI not resulting in significant cognitive impairment) would not typically impair one’s ability to differentiate between right and wrong and adhere to the right, nor would either of these conditions mitigate the crime of larceny. A presumed substance abuse condition, suggested by available medical records from his active service time, would also not mitigate the circumstances of his discharge. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the short term of honorable service completed prior to the criminal misconduct against others leading to the applicant’s separation, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s characterization of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :TJR :MM :MGM 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 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, USC, 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. Title 10, USC, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, 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. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 5. Army Regulation 635-200, 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the U.S. or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. e. A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 6. 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. 7. 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. 8. 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) AR20220005580 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1