IN THE CASE OF: 
BOARD DATE: 30 January 2023 
DOCKET NUMBER: AR20220006680
 
APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to either an honorable discharge or an under honorable conditions (general) discharge. 
APPLICANT'S SUPPORTING DOCUMENT(S) 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 he needs his discharge upgraded to perform a specific job that requires an honorable discharge. He has medical, physical, and mental health issues that need to be addressed. 

3. 
Having had prior service in the U.S. Marine Corps, the applicant enlisted in the  Army National Guard (ARNG) on 29 January 2003. He was discharged on 28 January 2004, and transferred to the U.S. Army Reserve (USAR) Control Group. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows his service characterized as honorable. 

4. 
The applicant reenlisted in the ARNG as a Reserve of the Army on 13 February 2004, for 4 years. 

5. 
The applicant was ordered to active duty and entered a period of active-duty service on 6 March 2004. 

6. 
Before a special court-martial at Fort Rucker, AL on 24 February 2005, the applicant was found guilty of two specifications of assault on two noncommissioned officers by pointing at them with a dangerous weapon, to wit: a handgun, on or about 5 December 


2004; and one specification of absenting himself from his place of duty from, on or about 5 December 2004 to on or about 10 December 2004. 
7. 
The court sentenced the applicant to forfeiture of $700.00 pay per month for four months, confinement for four months, and to be separated from service with a BCD. The sentence was approved on 2 May 2005, and the record of trial was forwarded for appellate review. 

8. 
The U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 13 December 2005. 

9. 
Special Court-Martial Order Number 126, issued by Headquarters U.S. Army Armor Center Fort Knox, Fort Knox, KY on 2 June 2006, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 

10. 
The applicant was discharged on 14 September 2007. 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. He was credited with 3 years, 2 months, and 25 days of net active service this period. He had two periods of lost time. His awards and decorations include the: Marine Corps Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and the Armed Forces Reserve Medal. 

11. 
The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his characterization of service. On 24 July 2013, the ADRB determined he was both properly and equitably discharged and denied his request for relief. 

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: 


a. 
The applicant is applying to the ABCMR requesting an upgrade of his bad conduct discharge to either an honorable or under honorable conditions (general) discharge. He asserts he was experiencing mental health conditions that mitigated his misconduct. 

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 enlisted in the Army National Guard (ARNG) on 29 January 2003 and was discharged on 28 January 2004. He transferred to the U.S. Army Reserve (USAR) Control Group. He re-enlisted in the ARNG as a Reserve of the Army on 13 February 2004. He was ordered to active duty on 06 March 2004; 2) On 24 February 2005, the applicant was found guilty of two specifications of assault on two NCOs by pointing a handgun at them on 05 December 2004 and going AWOL from 05 December 2004-10 December 2004; 3) The applicant was discharged on 14 September 2007 with a Chapter 3, by reason of court-martial. His service was characterized as bad conduct; 4) The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his characterization of service. On 24 July 2013, the ADRB denied his request. 

c. 
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) and VA’s Joint Legacy Viewer (JLV) were also examined. 

d. 
The applicant asserts he was experiencing mental health conditions that mitigated his misconduct. The applicant was seen for a command directed mental health evaluation (CDMHE) on 09 November 2004. The applicant was command referred for a CDMHE because of threatening comments toward others and a history of misconduct. The applicant was thoroughly evaluated by a licensed military psychologist and was diagnosed with an occupational problem and narcissistic personality traits. He was returned to the unit and offered behavioral health treatment. The applicant declined behavioral healthcare at that time. After the applicant was charged with threatening NCOs with a handgun and going AWOL, he did then agree to be prescribed psychiatric medication and attend medication management appointments. While on active service, he was diagnosed with a personality disorder, occupational problem, bipolar disorder, and malingering. The applicant did not provide any civilian behavioral health care documentation after leaving active service. A review of JLV 


provided evidence the applicant has been seen at the VA for homelessness, suicidality, detox, and depression since February 2021. The applicant does not receive any service-connected disability. 
e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his discharge. 
Kurta Questions 
A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing mental health conditions that contributed to his misconduct. 
B. Did the condition exist, or experience occur during military service? Yes, the applicant contends his mental health conditions occurred while on active service. 
C. Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence the applicant was experiencing a mental health condition while on active service that would mitigate his misconduct. He had a thorough psychological evaluation completed one month prior to his assault on two NCOs and going AWOL. He was not found to meet criteria for a mental health condition that would mitigate this type of misconduct. The applicant was later diagnosed with various disorders while on active service. However, there is no nexus between these disorders and the applicant’s misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of these mental conditions; 2) These mental health conditions do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his mental conditions resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. 
BOARD DISCUSSION: 
After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board reviewed concurred with the finding of the Agency Medical Advisor finding Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, 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 Board determined 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 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, 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. 


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 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. 
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