IN THE CASE OF: BOARD DATE: 19 October 2023 DOCKET NUMBER: AR20220011072 APPLICANT REQUESTS: . upgrade of his bad conduct discharge (BCD) to under honorable conditions (general) . a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Orders Number 266-1321, 23 September 2014 . Enlisted Record Brief . DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the U.S.), 14 June 2004 . DD Form 4, 20 November 2007 . DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army), 19 November 2007 . DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus), 20 November 2007 . DA Form 2166-8 (Noncommissioned Officer Evaluation Report NCOER)) . DA Form 4187 (Personnel Action) . General Court Martial Order Number 19, 13 June 2013 . DA Form 4430 (Department of the Army Report of Result of Trial), 2 October 2012 . General Court Martial Order Number 21, 19 June 2013 . Memorandum – Subject: Letter of Debarment, 23 September 2014 . General Court Martial Order Number 284, 28 August 2014 . Orders Number 275-310, 1 October 2012 . DD Form 2717 (Department of Defense Voluntary/Involuntary Appellate Leave Action), 31 January 2013 . Inmates Release Order, 25 January 2013 . DD Form 93 (Record of Emergency Data) . SGLV 8286 (Servicemembers Group Life Insurance Election Certificate), 31 January 2013 . DD Form 214 (Certificate of Release or Discharge from Active Duty), 23 September 2014 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 in pertinent part that he is currently in need of service-related benefits. He was experiencing extreme emotional and mental stress due to his previous deployments and the recent death of his mother. He notes that he is unable to obtain substantial employment due to his military record of misconduct. Most importantly, he is precluded from receiving medical care for his health-related concerns (depression, anxiety, etc.) 3. A review of the applicant's available service records reflects the following: a. On 1 September 2004, the applicant enlisted in the Regular Army to serve as a 14S (Avenger Crew Member). b. On 1 November 2009, the applicant was promoted to the rank/grade of sergeant (SGT)/E-5. c. On 28 August 2012, the applicant was court-martialed for violating Article 112a. (Wrongful Use, Possession etc. of a Controlled Substance) and Article 81 (Conspiracy) of the Uniformed Code of Military Justice (UCMJ). On or about 4 April 2012, the applicant wrongfully distributed 27.5 grams of marijuana. Further, the applicant conspired with another individual to distribute a controlled substance. The applicant was found guilty of both charges and sentenced to 6 months confinement, reduction to private first class (PFC)/E-3 and a BCD. d. On 28 September 2012, the applicant's sentence was adjudged e. On 13 Jun 2013, Headquarters, I Corps issued General Court Martial Orders Number 19 approving the applicant's sentence, except for the part of the sentence extending to a BCD, to be executed. f. On 19 June 2013, Headquarters, I Corps issued General Court Martial Orders Number 21 dismissing the Article 112a and Article 81 charges. The proceedings were terminated on 29 August 2012. The charges and specifications were withdrawn by the convening authority. All rights and privileges of the applicant previously deprived of were restored. g. On 28 August 2014, Headquarters, U.S. Army Fires Center of Excellence and Fort Sill issued General Court Martial Orders Number 284 finally affirming the applicant's court-martial sentence. That portion of the applicant's sentence extending to confinement had been served. Article 71(c) (Execution of Sentence) having been complied with; the BCD would be executed. h. On 23 September 2014, the U.S. Army Installation Management Command issued Orders Number 266-1321 reassigning the applicant to the transition point pending discharge. The applicant was subsequently discharged from military service. DD Form 214: . item 24 (Character of Service) reflects "Bad Conduct" . item 25 (Separation Authority) reflects "Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3" . item 26 (Separation Code) reflects "JJD" . item 28 (Narrative Reason for Separation) Court-Martial (Other) 4. The applicant provides: a. Enlisted Record Brief reflective of the applicant's pertinent personnel and administrative information to include assignment and awards history. b. DD Form 4 dated 20 November 2007, reflective of the applicant's reenlistment of 5 years in the Regular Army. c. DA Form 3340-R dated 19 November 2007, reflective of the applicant's submitted request to reenlist in the Regular Army. The applicant's request was subsequently approved by his immediate commander. d. DA Form 4789 dated 20 November 2007, reflective of the applicant's entitlement to a selective reenlistment bonus. e. DA Form 2166-8 (NCOER), reflective of the applicant's professional performance at the rank of SGT as assessed by members of his immediate leadership. The applicant was rated as fully capable with a recommendation that he be promoted to the rank/grade of staff sergeant (SSG)/E-6 with his peers. f. DA Form 4187 dated 4 October 2012, reflective of the applicant's duty status being changed from "present for duty" to "confined by military authorities" on 28 September 2012. g. DA Form 4187 dated 19 February 2013, reflective of the applicant's duty status being changed from "confined by military authorities" to present for duty" on 18 February 2013. h. DA Form 4430 dated 2 October 2012, reflective of the applicant being sentenced to 6 months confinement, reduction to private first class (PFC)/E-3 and a BCD. i. Memorandum – Subject: Letter of Debarment, dated 23 September 2014, reflective of the applicant being barred from entering Fort Sill, OK, effective 23 September 2014, due to the offenses that he was found guilty of during his general court-martial proceedings. j. Orders Number 275-310 dated 1 October 2012, reflective of the applicant being ordered to proceed on permanent change of station on 1 October 2012, to the Personnel Control Facility, Personnel and Support Battalion, Fort Sill. k. DD Form 2717 dated 31 January 2013, reflective of the applicant being permitted to take leave pending the completion of the appellate review of his court martial conviction. The applicant also acknowledged a debt of $20,600.00 of which would be collected from his accrued leave balance (30 days) prior to any payments being disbursed for used or sold leave. l. Inmates Release Order dated 25 January 2013, reflective of the applicant's pending release from confinement on 18 February 2013. The applicant was released on 18 February 2013. m. DD Form 93 reflective of the applicant's designated beneficiaries of his military benefits in the event of his death. n. SGLV 8286 dated 31 January 2013, reflective of the applicant's designated beneficiaries of his military benefits in the event of his death. 5. 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. 6. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his Bad Conduct Discharge (BCD) to a General, Under Honorable Conditions. He contends other mental health condition mitigates 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 1 September 2004. . On 28 August 2012, the applicant was court-martialed for violating Article 112a. (Wrongful Use, Possession etc. of a Controlled Substance) and Article 81 (Conspiracy) of the Uniformed Code of Military Justice (UCMJ). On or about 4 April 2012, the applicant wrongfully distributed 27.5 grams of marijuana. Further, the applicant conspired with another individual to distribute a controlled substance. The applicant was found guilty of both charges and sentenced to 6 months confinement. . On 23 September 2014, the applicant was discharged from military service. His DD Form 214 indicates he was discharged under the provisions of AR 635-200, Chapter 3, by reason of court-martial. His service was characterized as Bad Conduct. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD 214, and documents from his service record and separation packet. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant reports requesting this upgrade because he is currently in need of service-related benefits to receive care for his anxiety and depression. He reports that at the time of his misconduct, he was experiencing extreme emotional and mental stress due to his previous deployments and the death of his mother. He notes that he is unable to obtain substantial employment and is precluded from receiving medical care due to his military record of misconduct. e. The applicant’s active-duty electronic medical record shows a routine post deployment evaluation, dated 11 Dec 2008, indicating that the applicant denied any concerns related to depression, PTSD, anger/aggression, suicidal Ideation, social/family conflict, alcohol use, and any other issues. In a second post-deployment screening, dated 19 Apr 2011, there was no indication of a diagnosis. He denied any major problems with adjustment issues, relationship issues, family issues, or alcohol use as well as no imminent risk noted. The applicant was seen on 02 Feb 2012 by the ASAP because he was arrested for possession of marijuana and recently receiving a urinalysis, that he stated knowingly would test positive for marijuana use. During a follow-up intake assessment, dated 07 Feb 2012, the applicant reported that he purchased and consumed marijuana as a mechanism to be discharged from the military. He reported experiencing significant loss and his mother was ill with a poor prognosis to recover and he wanted to go home. Despite the lack of any mental health diagnosis during military service, the applicant is 70% service connected for PTSD effective date 29 November 2020. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is evidence that the applicant had a behavioral health condition during military service. However, his BH condition would not mitigate his discharge. 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 a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts familial stressors and other mental health condition contributed to his misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is evidence in the applicant’s medical record that he reported engaging in substance use and sale as a mechanism to be discharged from the military because his mother was ill, and he wanted to return home. In addition, the applicant is 70 % service-connected for PTSD. Had the applicant simply engaged in marijuana use, that would be mitigated by the evidence in his medical record. However, the applicant was discharged for the wrongful distribution of 27.5 grams of marijuana and conspiring with another individual to distribute a controlled substance. None of the applicant’s behavioral health conditions or experiences mitigate his discharge, including PTSD and/or familial stressors, since they do not impact his ability to distinguish right from wrong and act in accordance with the right. 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, supporting documents, 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 to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD 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. 3. A majority of the Board concurred with the conclusion of the medical advising official regarding his misconduct being only partially mitigated by PTSD. However, a majority of the Board also considered his service history, which included over 2 years of deployed service, an award of the Army Commendation Medal, an award of the Army Achievement Medal, and two awards of the Army Good Conduct Medal. A majority of the Board found this service history sufficient as a basis for clemency. Based on a preponderance of evidence, a majority of the Board determined the applicant’s character of service should be changed to under honorable conditions (general). 4. The member in the minority found insufficient evidence of in-service mitigating factors and also concurred with the conclusion of the medical advising official regarding his most serious misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the member in the minority determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general). 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. AR 635-200 (Active Duty Enlisted Administrative Separations) 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 3, section IV provided that a member 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states 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. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. On 25 August 2017, the Office of the Under Secretary 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; TBI; sexual assault; and sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. 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 based on 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//