IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010940 APPLICANT REQUESTS: His bad conduct (BCD) discharge be upgraded so that he may receive disability. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Customer Letters of Appreciation (two) * Employer Certificates of Appreciation/Achievement (four) * Letters of support (three) * Medical Documents FACTS: 1. The applicant did not file within the 3-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 was not afforded a separation board. The Criminal Investigative Division (CID) agent was a friend and coerced him to say things he didn't agree with. He lost his benefits after serving the county to the highest standards with no complaints and now expects honor in return. The type of discharge he received has negatively affected his life with his family, friends, and law enforcement. As an African American he feels afraid someone may unfairly judge him and take out their own judgement on him or his family. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 22 September 1981 for three years. He served in the military occupational specialties 31L (Wire Systems Installer) and 88M (Motor Transport Operator). 5. The applicant had immediate reenlistments on 23 July 1984, 23 June 1987, and 28 March 1990. The highest grade he held was sergeant/E-5. 6. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. 7. The applicant was found guilty by special court-martial on 12 September 1991 of indecent assault on a fellow Soldier, by forcing her onto her bed and grinding his groin into her pelvic area, on or about 16 July 1991. The court sentenced him to be reduced to the grade of E-1, forfeiture of $502.00 pay per month for three months, confinement for three months; and to be discharged from the service with a BCD. 8. Special Court-Martial Order Number 11, shows the sentence was approved on 7 December 1991. The court-martial convening authority reduced the forfeiture to $440.00 pay per month for three months, and approved the remainder of the sentence. Except for the part of the sentence extending to BCD, he ordered the sentence to be executed. The record of trial was forwarded to the U.S. Army Court of Military Review. 9. The applicant was place on excess leave pending his appellate review on 2 October 1992. 10. The available record contains a partial copy of the U.S. Army Court of Military Review memorandum dated 25 February 1993. Counsel raised five errors and the Court dismissed two without comment. The portion of the memorandum relating to the other objection and final determination are not of record. 11. Special Court-Martial Order Number 12, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 11 June 1993, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 12. The applicant was discharged on 6 July 1993, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as bad conduct. He had 11 years, 5 months, and 25 days of net active serve with 550 days in excess leave and 112 days of lost time. His awards are shown as the: * Army Commendation Medal * Army Achievement Medal (3rd award) * Army Good Conduct Medal (3rd award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon (2nd award) * NCO Professional Development Ribbon with Numeral 2 * Mechanic and Drivers Badge * Expert Qualification Badge with Rifle bar (M-16) 13. The applicant provides: a. Four award certificates from his employer, two letters of appreciation from customers about his work, knowledge, and care in preforming services for them. Additionally, he provides character reference letters attesting to him being a caring father, professional, thoughtful in his duties, and valued by his peers. b. Three pages of progress notes, dated 12 October 2021, that show care since 2019, following a work related injury to his back that rendered him disabled. He was assessed with having: * Major depressive disorder, recurrent, moderate) * Bilateral lower extremity edema * Migraine with aura and without status migrainosus, not intractable * Essential hypertension * Injury of cervical spinal cord, sequela * Mixed insomnia c. The private medical records state they discussed his depression, the doctor felt he was suffering from PTSD dating from his accident and disability. The applicant indicated he was not quite ready to accept the diagnosis. The attending physician did not render a formal diagnosis of PTSD. 14. The Army Discharge Review Board denied the applicant's request for an upgrade on 18 February 1998. 15. 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. 16. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. ? 17. MEDICAL REVIEW: a. The applicant is requesting his Bad Conduct (BCD) discharge be upgraded so that he may receive disability. The applicant contends that PTSD was a mitigating factor in his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 22 September 1981. He had immediate reenlistments on 23 July 1984, 23 June 1987, and 28 March 1990. * The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. * He was found guilty by special court martial on 12 September 1991 of indecent assault on a fellow Soldier, by forcing her onto her bed and grinding his groin into her pelvic area, on or about 16 July 1991. The court sentenced him to be reduced to the grade of E-1, forfeiture of $502.00 pay per month for three months, confinement for three months; and to be discharged from the service with a BCD. * The applicant was discharged on 6 July 1993, under AR 635-200, Chapter 3, as a result of court marital, with Bad Conduct service characterization. * The Army Discharge Review Board denied the applicant's request for an upgrade on 18 February 1998. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, DD Form 293, his ABCMR Record of Proceedings (ROP), customer letters of appreciation, employer certificate of appreciation/achievement (4), letters of support (3), medical documents, DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA, though no data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Applicant asserts that he was coerced into saying things during a CID investigation and that PTSD was a mitigating factor to his discharge. There is no evidence that the applicant was ever diagnosed with a mental health condition, nor engaged in mental health care, while he was in the Army. Though, given lack of electronic health records at the time of his service, it is not uncommon for there to be no record of treatment or formal support. e. The applicant’s electronic health record (EHR) from both the VA and DOD contains no mental health records from his time in service, nor since his discharge. Community health summaries available on JLV indicate he may be treated for anxiety by a medical doctor, but no details of his treatment or diagnosis are available. The applicant provided progress notes from 12 October 2021 that show he’s been engaged in care since 2019, following a work-related injury that rendered him permanently disabled. He holds a diagnosis of Major Depressive Disorder (MDD), recurrent, moderate and Mixed Insomnia. The notes also articulate that his provider believes he’s suffering from PTSD secondary to his civilian work-related accident, though the applicant was not ready to accept this and it was not formally given. That said, this diagnosis would have come approximately 30 years after his discharge from the Army, and therefore would not be a mitigating condition to his discharge. f. 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 a condition or experience at the time of service that mitigated his discharge. However, he contends his misconduct was related to PTSD, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 attests to having PTSD. 2. Did the condition exist or experience occur during military service? Unsure, the applicant asserts PTSD as a mitigating factor but did not state it was during his service. Recent medical records indicate he has not yet been diagnosed with PTSD, though his doctor suspects he is suffering from it secondary to a work related injury in 2019. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD. This assertion alone is worthy of consideration by the Board. Though, there is insufficient (no) documentation to support a behavioral health condition was likely present at the time of his misconduct. His EHR and provided medical records do indicate mental health conditions, to include MDD, anxiety and insomnia with a potential PTSD diagnosis secondary to his civilian work-related injury in 2019. Hence, these diagnoses were not made until decades after his service and hold no bearing on his misconduct during his time in service. There are no indications his mental health conditions started during service. Also, this opinion is given based on the available special court martial documents, as this advisor is aware his separation packet was not provided. Hence, based on the current information in his file, there is no nexus between his reported mental health conditions and indecent assault on a fellow soldier. This misconduct is not part of the natural history or sequelae of his reported mental health conditions. And the asserted condition does not affect one’s ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: After reviewing the application and all supporting documents, 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. The ABCMR 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. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official finding the applicant’s misconduct was not part of the natural history or sequelae of his reported mental health conditions. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 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. 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. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states that: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Applicants do not have a right to a hearing before the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions in Washington D.C. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 3 provides that 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. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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 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. 6. 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. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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.) AR20220010940 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1