IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20220007653 APPLICANT REQUESTS: in effect, his bad conduct characterization of service be upgraded and a video/telephone appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: a DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant indicates his request is related to a mental health condition. 2. He states, in effect, he would like an entry level separation. At the time of separation, he was going through a deep stage of spiritual growth. He was struggling with depression and cognitive dissonance. Unaware of how to handle himself, he ran and now all he wants is another chance. Another chance to serve his country and finish what he started. 3. The applicant enlisted in the Regular Army on 4 August 2014. He completed his initial training and was awarded military occupational specialty 11B (infantryman). 4. The complete facts and circumstances of his discharge are not available for review. However, the record shows the applicant was placed in pretrial confinement at the Charleston Naval Brigade on 27 September 2018. 5. On 18 December 2018, he was released from confinement. A DA Form 4187 (Personnel Action) shows the applicant received 157 days of pre-trial confinement and 80 days of Judge ordered credit. 6. The applicant was discharged on 11 October 2019. 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, as a result of court-martial. His service was characterized as bad conduct (Separation Code JJD, Reentry Code 4), and he completed 1 year, 3 months, and 26 days of net active service for the period. The DD Form 214 shows he had lost time from 18 January 2015 to 16 March 2015, 5 April 2015 to 13 July 2018, and 14 July 2018 to 17 December 2018. 7. On 4 October 2022, the Case Management Division requested medical documentation from the applicant related to his mental health diagnosis and treatment. He did not provide evidence of a mental health condition. 8. 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. 9. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a change to his military record. He is applying for his bad conduct characterization of service be upgraded. He contends he had a mental health condition that mitigated his misconduct, depression. 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 Regular Army on 4 August 2014; 2) The complete facts and circumstances of his discharge were not available for review; 3) The applicant was placed in pretrial confinement at the Charleston Naval Brigade on 27 September 2018, and he was released on 18 December 2018; 4) The applicant was discharged on 11 October 2019 with a Chapter 3 (as a result of court-martial) with a bad conduct characterization of service. c. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the applicant’s available military service records, the Armed Forces Health Longitudinal Technology Application (AHLTA), and the VA’s Joint Legacy Viewer (JLV). No additional hardcopy military or civilian treatment records were provided for review. d. The applicant asserts he was experiencing depression while on active service. A review of JLV and AHLTA is void of behavioral health related treatment records. The applicant did not provide any civilian documentation of a diagnosis of depression. The applicant has no service-connected disabilities. e. Based on the available information, it is the opinion of the ARBA Medical Advisor that there is insufficient evidence to support the applicant had a condition or experience that mitigated his misconduct. 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 depression that contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant contends depression occurred while on active service. C. Does the condition experience actually excuse or mitigate the discharge? Partially. There is no evidence supporting the applicant was experiencing depression while on active service. However, the applicant contends he was experiencing depression that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense 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. which appears to have been a lengthy period of being absent without leave; and the reason for his separation. The Board considered the applicant's mental health claim and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being only partially mitigated by a mental health condition. Based on a preponderance of evidence, the Board determined 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 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. Army Regulation 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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 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. d. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when – (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) HQDA (AHRC–EPR–F), on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. (3) The Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. 2. 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, 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 grounds. 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007653 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1