IN THE CASE OF: BOARD DATE: 17 May 2023 DOCKET NUMBER: AR20220010937 APPLICANT REQUESTS: Reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) character of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * two DD Forms 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 9 August 2022 and 1 April 2023 * self-authored statement, dated 9 August 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2000042463 on 9 January 2001. 2. As a new argument, the applicant states, in effect, he was bullied daily and had a drug problem. He suffered from post-traumatic stress disorder (PTSD) and was not aware of it at the time. 3. On his DD Form 293, dated 1 April 2023, the applicant notes that PTSD and Sexual Assault/Harassment are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 26 June 1978 for a 3-year period. The highest rank he attained was private first class/E-3. 5. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 1 August 1979, for breaking restriction on or about 26 July 1979. His punishment consisted of reduction to private/E-2, forfeiture of $113.00 pay for one month, 14 days of restriction, and 14 days of extra duty. 6. A DA Form 4187 (Personnel Action) shows the applicant's duty status changed from Present for Duty to Military Confinement on 2 February 1981. 7. Before a special court-martial adjudged on 2 February 1981, at Fort Polk, LA, the applicant was found guilty of wrongfully selling 122.17 grams, more or less, of marijuana, and for wrongfully possessing 122.17 grams, more or less, of marijuana on a military post, on or about 1 December 1980. 8. The court sentenced the applicant to be discharged from the service with a bad conduct discharge (BCD), confinement at hard labor for 75 days, forfeiture of $200.00 pay per month for five months, and reduction to the grade of private/ E-1. The sentence was approved on 20 February 1981. The record of trial was forwarded for review by the Court of Military Review, pending completion of appellate review. 9. On 25 March 1991, the unapplied portion of the sentence to forfeit of $200.00 pay per month for five months and the unserved portion of the confinement at hard labor for75 days was suspended for six months at which time the suspended portion would be remitted without further action unless the suspension was sooner vacated. 10. A Standard Form (SF) 93 (Report of Medical History), dated 27 March 1981, and the corresponding SF 88 (Report of Medical Examination) shows the applicant reported being in good health and was physically qualified for separation. 11. The applicant underwent a mental status evaluation on 27 March 1981. He was psychiatrically cleared to participate in board proceedings. 12. A DA Form 4187 shows the applicant's duty status changed from Military Confinement to Present for Duty on 26 March 1981. 13. The Army Court of Military Review on 20 April 1981, approved the findings of guilty and the sentence. 14. Special Court-Martial Order Number 91, issued by the 5th Infantry Division (Mechanized), Fort Polk, LA, on 17 August 1981, noted that the sentence was finally affirmed, and ordered the BCD duly executed. 15. The applicant was discharged on 28 August 1981. His DD Form 214 (Certificate of Release or Discharge from Active Duty) and the corresponding DD Form 215 (Correction to DD Form 214) show he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial. His characterization of service was UOTHC. He was credited with 1 year, 11 months, and 2 days of net active service with, lost time from 2 February 1981 to 25 March 1981. 16. On 9 January 2023, the ABCMR staff requested that the applicant provide medical documents to support his contention of a mental health issue (PTSD) as a contributing factor in the circumstances that resulted in his discharge. The applicant's record does not contain, nor did he provide documentation pertaining to his claim of PTSD. 17. The Board reviewed the applicant's petition to the ABCMR for an upgrade of his discharge on 9 January 2001. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. 18. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (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. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requests reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) character of service. He asserts he was experiencing PTSD during his active service, which contributed to 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 into the Regular Army on 26 June 1978; 2) Before a special court- martial on 2 February 1981, the applicant was found guilty of wrongfully selling and possessing marijuana; 3) The applicant was discharged on 28 August 1981 Chapter 11, as a result of court-martial. His characterization of service was UOTHC; 4) The Board reviewed and denied the applicant's petition for an upgrade of his discharge on 9 January 2001. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and available medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional civilian medical documents were provided. d. The applicant contends he was bullied and experienced PTSD while on active service, which contributed to his misconduct. While on active service, the applicant was seen for a Mental Status Exam on 27 March 1981 as part of his discharge proceedings. He was not diagnosed with a mental health condition, and he was cleared from a psychiatric perspective for administrative proceedings. A review of JLV was void of behavioral health medical records, and the applicant receives no service-connected disability. Lastly, the applicant did not provide any documentation of being diagnosed with any behavioral health condition including PTSD since his discharge from active service. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. 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 contends he was experiencing PTSD that contributed to his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing PTSD while on active service. 3. Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. The applicant’s marijuana use could be an attempt to self-medicate or to avoid a negative emotional state. Avoidant behavior and are often a natural sequel to PTSD, but this is not sufficient to establish a history of PTSD during active service. In addition, there is no nexus between PTSD and the applicant’s misconduct of selling marijuana given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board agreed there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service and the medical review found no nexus between PTSD and the applicant’s misconduct of selling marijuana. 2. The Board noted the advising opine which stated the applicant’s marijuana use could be an attempt to self-medicate or to avoid a negative emotional state. Avoidant behavior and are often a natural sequel to PTSD, but this is not sufficient to establish a history of PTSD during active service. The applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 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 found 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 to amend the decision of the ABCMR set forth in Docket Number AR2000042463 on 9 January 2001. 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 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. 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. 3. 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. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (UOTHC) and who have been diagnosed with post-traumatic stress disorder (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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, Traumatic Brain Injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018, 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010937 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1