IN THE CASE OF:  

BOARD DATE:  26 July 2023

DOCKET NUMBER:  AR20220011775


APPLICANT’S REQUEST: Upgrade of his bad conduct discharge (BCD).

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge)

FACTS:

1.  Standard of Review. When arriving at its findings and making its determinations, the 
Board shall review the petition for requested relief independent from any previous 
petitions submitted to the Army Discharge Review Board or the Army Board for 
Correction of Military Records (ABCMR).

2.  The applicant states, in effect, he requests a change of the characterization of his 
service to either something more favorable or "Uncharacterized" so he may become 
eligible to utilize Veterans benefits and to aid in future job searches. His discharge was 
based upon an isolated event during his years of otherwise exemplary service to his 
nation.

3.  On his DD Form 293, the applicant notes depression and anxiety are related to his 
request as contributing and mitigating factors in the circumstances that resulted in his 
separation.

4.  On 17 May 2002, the applicant enlisted into the Regular Army for a period of 6 years. 
Upon completion of initial entry training, he was assigned to a unit located in the 
Republic of Korea (ROK).

5.  Special Court-Martial Order (SPCMO) Number 6, issued by Headquarters, 2d 
Infantry Division, ROK on 16 March 2004, shows the applicant was arraigned at a 
SPCM empowered to adjudge a BCD.

     a.  The applicant was found guilty of:

*	one specification of, with intent to deceive, making a false official statement 
on or about 26 October 2003
*	one specification of wrongfully punching a public dog, a unit mascot, in the 
head and causing its death on or about 25 October 2003

     b.  His sentence consisted of reduction from the rank/grade of private first class/E-3 
to private/E-1, confinement for 4 months, and to be discharged from the service with a 
BCD. The sentence was adjudged on 8 January 2004.

6.  The decision of the appellate review is not present in the available record.

7.  SPCMO Number 26, issued by Headquarters, 2nd Infantry Division, ROK on 
21 December 2004, noted the sentence was finally affirmed and the BCD was ordered 
to be executed.

8.  Orders and his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
show the applicant was discharged on 18 March 2005. He was discharged under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
Chapter 3, as a result of court-martial. His service was characterized as bad conduct. 
He was credited with completion of 2 years, 5 months, and 21 days of net active 
service. He did not complete his first full term of service. He had lost time due to 
confinement from 8 January 2004 until 17 April 2004. 

9.  On 24 February 2023, a member of the ABCMR support staff requested that the 
applicant provide medical documents that support his mental health issues. To date, he 
has not provided a response.

10.  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.

11.  Army Regulation 635-200 provides that a Soldier would be given a BCD pursuant 
only to an approved sentence of a general or special court-martial and that the appellate 
review must be completed, and the affirmed sentence ordered duly executed.

12.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency guidance.

13.  MEDICAL REVIEW:

    a.  Background: The applicant is requesting an upgrade of his bad conduct discharge 
(BCD). The applicant contends other mental health 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 Regular Army on 17 May 2002. 
*	Special Court-Martial Order (SPCMO) issued on 16 March 2004 shows the applicant 
was arraigned at a SPCM empowered to adjudge a BCD. The applicant was found 
guilty of one specification of: with intent to deceive, making a false official statement 
on or about 26 October 2003; and one specification of wrongfully punching a public 
dog, a unit mascot, in the head and causing its death on or about 25 October 2003
*	The applicant was discharged on 18 March 2005 under AR 635-200, Chapter 3, as a 
result of court-martial. His service was characterized as bad conduct. He had lost 
time due to confinement from 8 January 2004 until 17 April 2004.

c.  Review of Available Records Including Medical:

The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this 
case. Documentation reviewed included the applicant’s completed DD Form 293, his 
ABCMR Record of Proceedings (ROP), 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 minimal data 
was available. Lack of citation or discussion in this section should not be interpreted as 
lack of consideration. 

    d.  The applicant asserts that “other mental health” contributed to his misconduct, and 
that he feels his discharge was based upon an “isolated event in years of exemplary 
service.” The applicant’s electronic health record (EHR) is void of any mental health 
encounters. He did not provide any medical documentation to support his assertion of 
mental health concerns during his time in service. Per the applicant’s EHR, he only has 
one encounter with the VA in April of 2023, regarding re-entry (incarceration) support. 
The applicant does not hold any diagnoses from the VA, is not service connected, and 
otherwise has not been engaged in any care. That said, due to the characterization of 
the applicant’s discharge, he likely is not eligible for most services. The applicant did not 
provide any mental or physical health records, since his time in service, to substantiate 
his assertion that other mental health mitigated his discharge. 
    e.  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 would 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 depression and 
anxiety.

    (2)  Did the condition exist or experience occur during military service? Unknown. The 
applicant did not clarify if he experienced anxiety and depression while in the service.  

    (3)  Does the condition or experience actually excuse or mitigate the discharge? No. 
There is insufficient evidence beyond self-report that the applicant has ever experienced 
a mitigating condition. No mental health records were in his supporting documents or 
electronic health record, and the applicant did not supply any records to support his 
assertion. Of note, the applicant’s misconduct is not considered behaviors consistent 
with the natural history and sequelae of anxiety or depression. There is no nexus 
between violence toward, and/or killing an animal, nor lying about it, and anxiety or 
depression.  These conditions do not typically affect one’s ability to distinguish right 
from wrong and act in accordance with the right. However, per Liberal Consideration 
guidance, his contention is sufficient to warrant 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, 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 the medical advisory the Board 
concurred with the advising official finding insufficient evidence beyond self-report that 
the applicant has ever experienced a mitigating condition. No mental health records 
were in his supporting documents or electronic health record, and the applicant did not 
supply any records to support his assertion. Of note, the applicant’s misconduct is not 
considered behaviors consistent with the natural history and sequelae of anxiety or 
depression. There is no nexus between violence toward, and/or killing an animal, nor 
lying about it, and anxiety or depression.

2.  Liberal consideration was given, however, the Board found insufficient evidence of 
in-service mitigating factors to overcome the misconduct. The applicant no provided 
post-service achievement 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. 
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 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.

2.  Title 10, USC, Section 1552(b), provides, with respect to courts-martial and related 
administrative records pertaining to court-martial cases tried or reviewed under the 
Uniform Code of Military Justice (UCMJ), action to correct any military record of the 
Secretary's Department may extend only to actions taken by reviewing authorities under 
the UCMJ or action on the sentence of a court-martial for purposes of clemency. The 
Secretary of the Army shall make such corrections by acting through boards of civilians 
within the executive part of the Army. The ABCMR is not empowered to set aside a 
conviction. Court-martial convictions stand as adjudged or modified by appeal through 
the judicial process, 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 15-185 prescribes the policies and procedures for correction of 
military records by the Secretary of the Army, acting through the ABCMR. prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. The ABCMR may, in its discretion, hold a 
hearing. 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.

4.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.

	a.  An honorable discharge was separation with honor.  Issuance of an honorable 
discharge certificate was appropriate when the quality of the Soldier's service generally 
met the standards of acceptable conduct and performance of duty or was otherwise so 
meritorious that any other characterization would clearly be inappropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, separation authorities could issue a general discharge to Soldiers 
whose military record was satisfactory but not sufficiently meritorious to warrant an 
honorable discharge.

	c.  A discharge under other than honorable conditions (UOTHC) is an administrative 
separation from the Service under conditions other than honorable. It may be issued for 
misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by 
court martial in the following circumstances.

          (1)  An under-other-than-honorable-conditions discharge will be directed only by a 
commander exercising general court-martial authority, a general officer in command 
who has a judge advocate or legal advisor available to his/her command, higher 
authority, or the commander exercising special court-martial convening authority over 
the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 
10) when delegated authority to approve such requests.

          (2)  When the reason for separation is based upon one or more acts or omissions 
that constitutes a significant departure from the conduct expected of Soldiers of the 
Army.  Examples of factors that may be considered include the following:

*	Use of force or violence to produce bodily injury or death 
*	Abuse of a position of trust
*	Disregard by a superior of customary superior-subordinate 
relationships
*	Acts or omissions that endanger the security of the United States or 
the health and welfare of other Soldiers of the Army
*	Deliberate acts or omissions that seriously endanger the health and 
safety of other persons

     d.  A bad conduct discharge will be given to a Soldier pursuant only to an approved 
sentence of a general or special court-martial. The appellate review had to have been 
completed and the affirmed sentence then ordered duly executed. Questions 
concerning the finality of appellate review should be referred to the servicing staff judge 
advocate.

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 post-traumatic stress disorder (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.

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.  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 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)	 AR20220011775


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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