IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220011348 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to honorable and, the issuance of a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) for his period of service from 1978 to 1984. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 ( Certificate of Release or Discharge from Active Duty) 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 served honorably from 1978 to 1984 and does not have a copy of his discharge record. He reenlisted and was court-martialed in 1989. Upon return to duty, he suffered harassment from superiors due to the court-martial and accepted a voluntarily separation from service due to continued harassment by his superiors. 3. On his DD Form 149, the applicant indicates post-traumatic stress disorder (PTSD), as a contributing and mitigating factor in the circumstances that resulted in his separation. However, he did not provide documentation to support a PTSD diagnosis, and did not respond to a request to provide his medical documentation. 4. The applicant's complete military records are not available for review; therefore, this case is being considered based on limited documents. 5. The applicant enlisted in the Regular Army on 3 January 1978. He served in military occupational specialty 11B (infantryman) and 72E Tactical Telecommunications Center Operator). The highest grade he held was E-5. 6. The applicant had immediate reenlistments on 23 October 1981 and 28 August 1984. 7. Court-martial charges were preferred against the applicant for violation(s) of the Uniform Code of Military Justice; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 8. By special court-martial the applicant was found guilty of violation(s) of the UCMJ, adjudged on 7 December 1988 and promulgated in Special Court-Martial Order Number 6, issued by Headquarters, 2nd Armored Division (Forward), Army Post Office New York on 13 April 1989. 9. The available record contains six documents related to the applicant's request for and placement on excess leave pending appellate review of his sentence. 10. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 15 September 1989. 11. Special Court-Martial Order Number 191, issued by Headquarters U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 22 December 1989, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 12. The applicant was discharged on 7 February 1990, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, as a result of court-martial. His DD Form 214 shows he was credited 12 years, 1 month, and 5 days of net active service this period, with 2 months and 7 days of inactive serve. His service was characterized as bad conduct. He had continuous honorable active service from "780103 to 840824." His awards and decorations are shown as the: * Army Commendation Medal * Army Achievement Medal (2nd award) * Army Good Conduct Medal (3rd award) * Army Service Ribbon * Overseas Service Ribbon * Noncommissioned Officer Development Ribbon (basic) * Humanitarian Service Medal * Parachutist Badge * Expert Qualification Badge with Rifle bar 13. 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. 14. The DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. In accordance with regulatory guidance, a DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. 15. 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. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his bad conduct discharge (BCD). The applicant asserts PTSD as a mitigating factor. 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 into the RA on 3 January 1978. He had reenlistments on 23 October 1981 and 28 August 1984. * Court-martial charges were preferred against the applicant for violation(s) of the Uniform Code of Military Justice; however, the relevant DD Form 458 (Charge Sheet) is not available for review. He was found guilty and adjudged on 7 December 1988 * A memo dated June 1989, with the subject of Involuntary Excess Leave, lists his offenses. He was convicted of "Violate a lawful general regulation by wrongfully operating a motor vehicle when operators license suspended or revoked." No additional context was given. * The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 15 September 1989. * Applicant was discharged 7 February 1990 under AR 624-200, Chapter 3, as a result of court marital with his service characterized as bad conduct. c. Review of Available Records Including Medical: d. 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, service records, and separation documentation. The VA electronic medical record and DoD health records were reviewed, though no data was available. No additional hardcopy military or civilian treatment records were provided for review. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant asserts that he was court martialed, subsequently harassed or mistreated by his superiors after the court martial, and eventually opted to voluntarily separate. However, this is inconsistent with records that state he received a bad conduct discharge as a result of court marital. In addition, he attests that he experienced PTSD. However, there is insufficient evidence that he was ever diagnosed with a mental health condition while in the service or since his discharge as no medical records were made available by the applicant, nor were they present in his electronic health record. f. After reviewing the application and all supporting documents, this Agency Behavioral Health Advisor cannot provide an opine regarding mitigation based on behavioral health diagnoses without documentation of the specific misconduct that led to his discharge. In addition, the applicant has asserted PTSD as a mitigating factor in his discharge, however, no evidence was provided to support this assertion. 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 gave minimal information on his application, leaving this advisor unsure if he is asserting PTSD during his time in service, after, or both. 3. Does the condition or experience actually excuse or mitigate the discharge? Unable to opine. 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 discharge from the Army, nor currently. Also, without documentation of the specific misconduct that led to his discharge, an opine regarding mitigation based on behavioral health diagnoses cannot be provided. 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant's petition, available military records and medical review, the Board concurred with the advising official finding there is insufficient (no) documentation to support a behavioral health condition was likely present at the time of his discharge from the Army, nor currently. Also, without documentation of the specific misconduct that led to his discharge, an opine regarding mitigation based on behavioral health diagnoses cannot be provided. The Board found there is insufficient evidence that he was ever diagnosed with a mental health condition while in the service or since his discharge as no medical records were made available by the applicant, nor were they present in his electronic health record. 2. The Board recognized the applicant's prior periods of honorable service and his accomplishments during those periods of service. However, the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided n post-service achievements or character letters of support to weigh a clemency determination. 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. Based on a preponderance of evidence, 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 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 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 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 and states prior to 1 October 1979, DD Forms 214 were issued when a Soldier was discharged for immediate reenlistment. This practice was stopped effective 1 October 1979. 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. Paragraph 3-11 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service Discharge Review Boards (DRB) and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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 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.) AR20220011348 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1