IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220003246 APPLICANT’S REQUEST: Upgrade of his bad conduct discharge (BCD) to an honorable discharge to make him eligible for medical benefits provided by the Department of Veterans Affairs (VA). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Honorable Discharge Certificate * Oath of Reenlistment Certificate * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum from Major General (MG) RDC * VA Forms 21-4138 (Statement in Support of Claim) (seven) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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. Through a U.S. Senator, the applicant states he served in the 82nd Airborne Division as an 11B (Infantryman). He is in urgent need of VA healthcare benefits for his mental health. As a result of numerous parachute jumps and infantryman duties, his lower back and extremities are in constant pain. He also suffers from hearing loss. He served honorably from 7 July 2000 until 8 January 2003 and was issued an Honorable Discharge Certificate when he reenlisted while serving in Afghanistan. After returning from Afghanistan, he was involved in an automobile accident while driving drunk that resulted in the death of his friend and fellow Soldier. He was court-martialed and subsequently released from incarceration early for good conduct. 3. On 7 July 2000, the applicant enlisted into the Regular Army for a period of 4 years. On 8 January 2003, he was honorably discharged for the purpose of immediate reenlistment. On 9 January 2003, he reenlisted for a period of 5 years. 4. Permanent Orders 091-1016 issued by Headquarters, Coalition Task Force 82, Bagram Airfield, Afghanistan on 1 April 2003, show the applicant was awarded the Combat Infantryman Badge (CIB) for engaging in active ground combat during the period of 21 January 2003 to 31 April 2003. 5. General Court-Martial Order (GCMO) Number 12 issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC on 15 April 2005, shows the applicant was arraigned at a GCM empowered to adjudge a bad conduct discharge. a. Following entry of pleas, but prior to findings, the applicant was found guilty of negligent homicide for, by culpable negligence, unlawfully killing Private M, a passenger in his vehicle, by driving while drunk, losing control of his vehicle, and causing the vehicle to strike a tree, which caused the death of the Soldier on or about 27 August 2003. b. His sentence consisted of reduction from the rank/grade of specialist/E-4 to private (PV1)/E-1, confinement for 30 months, forfeiture of all pay and allowances, and a BCD. The sentence was adjudged on 4 May 2004. c. Only so much of the sentence as provided for a BCD, confinement for 17 months, total forfeiture of all pay and allowances, and reduction to E-1 was approved and except for the BCD, ordered to be executed. 6. The applicant was confined by military authorities from 4 May 2004 until 25 May 2005. 7. GCMO Number 27 issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 9 February 2006, noted the sentence was finally affirmed and the BCD was ordered to be executed. 8. Orders and his DD Form 214 show the applicant was discharged on 6 October 2006. His DD Form 214 shows 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 continuous honorable active service from 16 October 1979 through 8 December 1980. He was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Parachutist Badge * No awards or decorations typically associated with deployment to a hostile fire area or the Combat Infantryman Badge for which he has Orders 9. Although the orders awarding the applicant the CIB show he engaged in active ground combat during the period of 21 January 2003 to 31 April 2003, his record is void of evidence showing the specific dates of duration and location of his deployment. Additionally, there is no evidence showing he was diagnosed with any behavioral health or medical condition during his period of service. 10. The applicant provides the following documents in support of his petition: a. A Headquarters, 82nd Airborne Division, Fort Bragg, NC memorandum, Subject: Character Reference for [the applicant], dated 28 May 2015, shows the Commanding General, MG RDC, recommends the applicant's BCD be upgraded to an honorable discharge. He acknowledged the applicant's drunk driving accident resulted in a fellow paratrooper's death and his subsequent court-martial conviction. He states the applicant was severely punished for making a poor decision that took the life of a friend and comrade and he was deeply remorseful. Since his early discharge for good behavior, the applicant had contributed considerable time and effort to his local community as referenced by local law enforcement and fellow workers. His BCD continues to limit civilian opportunities and prevents his access to medical and educational benefits he earned as a combat Veteran. He has been a model citizen since his release, and it is important that we enable him in this effort. b. VA Forms 21-4138 rendered in support of the applicant's claim for VA benefits show the applicant's former battalion commander, company commander, platoon leader, command sergeant major, squad leader, and two fellow Soldiers, all considered the applicant as a valued member of their unit. (1) The authors collectively state he is deserving of an upgraded characterization of his service to at least under honorable conditions (general) based upon his noteworthy service in combat while deployed to Afghanistan from 11 January 2003 to 13 August 2003 as a Paratrooper assigned to 2nd Platoon, Company C, 2nd Battalion, 505th Parachute Infantry Regiment. He participated in a wide range of combat operations, including air assaults, ground convoys, cordon-and-search, cave clearing, reconnaissance missions, indirect fire/close air support control, and innumerable foot patrols through harsh terrain. (2) Several state the applicant is entitled to numerous awards and decorations that are not shown in his Army records to include the: Combat Infantryman Badge, Army Commendation Medal, Valorous Unit Award (VUA), Afghanistan Campaign Medal, Global War on Terrorism Expeditionary medal, and Global War on Terrorism Service Medal. His former battalion commander indicated that he provided copies of supporting documents along with his statement to the VA, but they did not accompany the applicant's petition to this Board. (3) It was noted that the applicant's former battalion had seven of their Veterans commit suicide in the past 10 years. The applicant has had suicidal ideations since leaving the military, the most recent episode occurred on 19 August 2021. 11. 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. 12. Army Regulation 635-200 provides that a Soldier would be given a BCD pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed, and the affirmed sentence ordered duly executed. 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 14. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 15. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 6 October 2006 bad conduct discharge (BCD). He states: “I served honorably from July 7, 2000, until January 8, 2003, and was issued an Honorable Discharge certificate. On January 9, 2003, I reenlisted; I was serving in Afghanistan at that time. Upon returning from Afghanistan, I was involved in an auto accident while driving drunk. My friend and fellow soldier was killed in that accident. I was court-martialed, served my incarceration time, and was released early for good conduct. Attached, please find statements from my commanders and others that I served which attests to my faithful service and good character. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 7 July 2000 and was discharged on 6 October 2006 under the separation authority provided by chapter 3 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Court-Martial. c. The application includes a 28 May 2015 character reference from Major General R.D.C., the commander of the 82nd Airborne Division, in which he requested the applicant’s discharge be upgraded to honorable: “Mr. {Applicant} served as an infantryman in the United Sates Army from July 2000 through May 2005 which included one combat deployment to Afghanistan from 2003-2004 as a member of the 2/505th PIR {Parachute Infantry Regiment} in the 82nd Airborne Division. He was convicted of felony negligent homicide on 15 April 2004 for his involvement tin a drunken driving accident that killed a fellow Paratrooper from his platoon four days after returning from Afghanistan. Mr. {Applicant} was court martialed and received a bad conduct discharge and one year confinement in a Regional Confinement Facility at Fort Sill. Mr. {Applicant} was severely punished for making a poor decision that took the life of a friend and comrade. He is deeply remorseful but has not allowed that single day to shape the rest of his life. Since his early discharge for good behavior, he has contributed considerable time and effort into his local community as referenced by local law enforcement and fellow workers. The BCD continues to limit civilian opportunities and also prevents his access to the benefits he earned as a combat Veteran. {Applicant} has been a model citizen since his release and it is important that we enable him in this effort.” d. There are no encounters in AHLTA. JLV shows no diagnosed mental health conditions or clinical encounters. However, the applicant has made several unsuccessful attempts to establish eligibility for care with the Veterans Benefits Administration. From a 16 April 2020 VA social worker note: “VSO {Veteran Service Organization} informed he is going to send more information to have another review. VSO informed Veteran has bad back, knees and symptoms of PTSD and would benefit from healthcare.” e. From a Department of Veterans Affairs’ Statement in Support of Claim (VA Form 21-4138) written by his wartime battalion commander in September 2021: “He has not had access to VA assistance and suffers from PTSD which I believe contributed to his drinking on the night of 27 August when the accident occurred. Mr. Applicant has had suicidal ideations since leaving the military as confided in me by his mother and wife. The most recent episode occurred on 19 August 2021. I think it is also important to mention that the Battalion has had seven of our Veterans commit suicide in the past 10 years.” f. It is the opinion of the ARBA medical advisor there is not a medical basis upon which to base a discharge upgrade. Kurta Questions: A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes: PTSD B. Did the condition exist or experience occur during military service? Yes C. Does the condition or experience actually excuse or mitigate the discharge? Partially: As there is a nexus between PTSD and self-medicating with alcohol and/or illicit substances, his PTSD mitigates the act of driving under the influence of alcohol. However, the mitigation offered under the polices of liberal consideration does not outweigh the totality of the misconduct which resulted in the death a fellow Solider. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 that there is not a medical basis upon which to base a discharge upgrade. The Board considered the review that here is a nexus between PTSD and self-medicating with alcohol and/or illicit substances, his PTSD mitigates the act of driving under the influence of alcohol. However, the mitigation offered under the polices of liberal consideration does not outweigh the totality of the misconduct which resulted in the death a fellow Solider. 2. However, the Board found the applicant’s DD Form 214 omitted administrative entries in the remarks block for his Continuous honorable service for the period 7 July 2000 until 9 June 2003. Based on this, the Board granted partial relief to correct the applicant’s record for his period of honorable service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous Honorable Service from 7 July 2000 until 9 June 2003. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant’s bad conduct discharge (BCD) to an honorable discharge. 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. ADMINSTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 6 October 2006. As a result, amend his DD Form 214 by adding in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Combat Infantryman Badge * Item 18 (Remarks) SERVICE IN AFGHANISTAN FROM 21 JANUARY 2003 TO 31 APRIL 2003 ? REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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. Title 10, USC, Section 1552, the authority under which this Board acts, 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. 4. 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. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 5. 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. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 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 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 U.S. 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. Chapter 3 provided that an enlisted person 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. 6. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs 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 UOTHC 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. 7. 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. 8. 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, 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// ABCMR Record of Proceedings (cont) AR20220003246 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1