IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20220012112 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Character Reference Letters * 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, 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 would like to express his sincere apology for his misconduct while serving in the Army. During his tour in Germany and at the beginning of his transition stateside, he experienced an increase of drug and alcohol abuse. This abuse caused him to make detrimental decisions that affected his life and others. After the Army, he joined Narcotics Anonymous and worked on mental issues; he did not realize he had during and after his military career. In 1982, he met his wife and they have been married 39 years. They raised three children who are leading very successful lives. He ingrained in them many of life's lessons he learned while in the Army. He worked as a Chemical Operator and became a Shift Leader over men and women who worked with him. He brought many of the leadership skills he learned in the Army to that position. He became an upstanding citizen in his community and mentored many young men and women who experience the plights of drug abuse. He stayed out of trouble and focused his life on his family. He has accepted responsibility for committing this offense. He regrets his offending conduct, and he understands the extent of damage drugs can do to the end user and the community. He asks to upgrade his bad conduct discharge to a general discharge. He deeply apologizes and he can assure the Board that he has received and lived the morals that were instilled in him while serving his country. 3. The applicant’s service record are not available for review. An exhaustive search was conducted to locate his service records which are necessary in the processing of this case. Unfortunately, they could not be found. However, the applicant provided a DD Form 214 which is sufficient to conduct a fair and impartial review of this case. 4. The applicant’s available service record shows: a. He enlisted in the Regular Army on 9 November 1977. He held military occupational specialty 13B, Cannon Crewmember. He was assigned to Fort Stewart, GA. b. The complete facts and circumstances surrounding his discharge, including his court-martial order(s) are not available. However, his DD Form 214 shows he was discharged on 9 June 1983 under the provisions of chapter 3 (conviction by a court- martial) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with a bad conduct discharge. It also shows: * he completed 5 years and 22 days of active service of which 2 years, 18 months, and 15 days was foreign service * he had lost time from 11 January to 1 March 1982, 26 April to 1 June 1982, 14 to 15 July 1982, 4 to 24 August 1982, 30 August to 14 September 1982, 13 October 1982, 18 to 19 October 1982, 2 to 11 November 1982, and 24 November 1982 to 13 January 1983 * he was assigned Separation Code JJD and Reentry Code 3/3B/3C * he was awarded or authorized: Army Service Ribbon, Marksman Badge with Rifle Bar, Sharpshooter badge with Grenade Bar, Good Conduct Medal, and Overseas Service Ribbon 5. If his court-martial conviction was via a special court-martial, there is no indication he petitioned the Army Discharge Review Board for review of her discharge within that board’s 15-year statute of limitations. 6. The applicant provides multiple character reference letters and/or letters of support from various relatives, friends, and others. The authors describe him as follows: * He has always been a stellar citizen in his community, serving at his church, as a recreational coach for the youth and many other important roles in community * He is an influential role model for his children, even during adulthood; he enforced values, morals, and life skills that his children would need to become successful adults * He is a skilled worker; he encouraged his children to get the best education and gain the skills necessary to become productive citizens * He is a mentor to other children in the community as well as his nieces and nephews; he is also the most dependable, responsible, honest and courteous adult that she (the author) knows * He is a church, family, and community oriented person; he has been a role model for the youth; he has volunteered and participated in many community activities. * He has always offered to help anyone in whatever is needed; he is a hard worker and has never minded giving his all to his job, family, and friends. * He is an asset to the rural community he is a good man and has always been a good friend 7. By regulation (AR 635-200), 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. 8. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 9. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his bad conduct discharge to a general discharge. The applicant did not specify a mitigating condition or experience on his application. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP), however minimal information is available as his service record could not be found. Below is a summary of available information pertinent to this advisory: * Applicant enlisted into the Regular Army on 9 November 1977. * He was discharged on 9 June 1983 under the provisions of chapter 3 (conviction by a court-martial) of AR 635-200, with a bad conduct discharge. It also shows: * He had lost time from 11 January to 1 March 1982, 26 April to 1 June 1982, 14 to 15 July 1982, 4 to 24 August 1982, 30 August to 14 September 1982, 13 October 1982, 18 to 19 October 1982, 2 to 11 November 1982, and 24 November 1982 to 13 January 1983 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 149, his ABCMR Record of Proceedings (ROP), personal statement, character references, and DD Form 214. His service records and separation packet were not available for review. 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. In a self-authored statement, the applicant noted he “experienced an increase of drug and alcohol abuse. This abuse caused me to make detrimental decisions that affected my life and others. After the army, I joined Narcotics Anonymous and worked on mental issues I did not realize I had during and after my military career.” Hence, this advisor will presume he is asserting “other mental health” mitigated his discharge, as no indication was made on his application. There are no electronic health records (EHR) from his time in service (given the years he served). There were no medical or mental health records provided by the applicant to substantiate his claim of mental health issues during the time of his misconduct. e. Per review of the applicant’s EHR, he first engaged with the VA in 2022, likely recently becoming eligible for care. Applicant consistently engaged in mental health care December 2022 to May 2023. He participated in individual and group therapy, as well as medication management. During his initial evaluation on 19 December 2022, he denied any psychiatric history and reported being present to address his substance use (alcohol and cannabis). During an encounter on 27 December 2022, the prescribing provider diagnosed him with PTSD but did not review what symptoms he presented with or what the trauma was. The applicant has been diagnosed with cannabis use - unspecified, alcohol use- unspecified, and PTSD. He is not service connected, however, due to the characterization of the applicant’s discharge, he is not typically eligible for most services through the VA. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available, though there were no records of a mental health diagnoses, nor mental health treatment. While it is evident the applicant has been diagnosed with mental health concerns since his time in service, his first interaction with mental health appears to be 29 years after his discharge. There was no evidence provided that substantiated a mitigating condition was present during his time in service. There is evidence, per applicant self-report, that substance use issues started while in the service. However, a standalone substance use disorder is not typically a mitigating condition. f. After reviewing the application and 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. Per his DD Form 214, there is evidence AWOL was likely part of his separation, but there is no documentation to verify what charges he was court martialed for, and what he was found guilty of. In addition, there is insufficient evidence that a mitigating condition was present during the time of 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 asserts other mental health concerns. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts other mental health concerns, as well as substance use issues, were present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Unable to opine. There is insufficient (no) documentation to support a mitigating condition was likely present at the time of his discharge from the Army. There is evidence he currently holds several mental health diagnoses, to include PTSD, however there is no information to support that his PTSD is service connected or that the symptoms were present during his time in service. There is evidence of possible misconduct on his DD Form 214 that can be briefly commented on (numerous “lost time,” and likely AWOLs). AWOL can be an avoidant behavior consistent with diagnoses, history and sequalae of certain mental health conditions, to include PTSD. However, 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: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board considered the letters of support contesting to the character of the applicant. The applicant contends that the misconduct in which he engaged was, in part due to drug and alcohol abuse. He further states that after his discharge, he joined Narcotics Anonymous and worked on mental issues; he did not realize he had during and after his military career. However, the Board found insufficient evidence of in- service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination. Based on a preponderance of evidence available for review, 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 :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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, U.S. Code, 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel: a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. Paragraph 3-7c states a discharge under other than honorable conditions, is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member 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. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. 5. 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; TBI; sexual assault; 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 Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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, 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. 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. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220012112 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1