IN THE CASE OF: BOARD DATE: 19 January 2023 DOCKET NUMBER: AR20220005855 APPLICANT REQUESTS: an upgrade of her characterization of service from bad conduct to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 27 February 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 21 October 2011 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 she believes her discharge was unfair because she served in Iraq and did not have the opportunity to finish her deployment because of pertinent family issues. Furthermore, her post-traumatic stress disorder (PTSD) led to an unhealthy use of drugs. 3. The applicant enlisted in the regular Army on 29 January 2008. 4. Her record contains two DA Forms 4187 (Personnel Action), which show the below changes to her duty status: * Present for duty (PDY) to Absent Without Leave (AWOL) – 30 June 2010 * AWOL to Dropped from Rolls (DFR) – 30 July 2010 6. A DD Form 458 (Charge Sheet) dated 17 August 2010, shows the following court- martial charges were preferred against the applicant: a. Article 86 (AWOL) - In that the applicant did on or about 30 June 2010, without authority and with intent to permanently absent herself from her unit in Iraq, until on or about 30 July 2010. b. Article 86 (Desertion) - In that the applicant did on or about 30 July 2010, without authority and with intent to permanently absent herself from her unit in Iraq and did remain absent until present. 7. On 1 November 2010, the civil authorities apprehended the applicant and returned her to military control. 8. Special Court-Martial Order Number 6, dated 8 March 2011, shows: a. The applicant was convicted of the following charges and specifications: (1) Charge 1, Specification: On or about 30 June 2010, without authority, absented herself from her place of duty at which she was required to be, to wit: an International Airport, and remained absent until she was apprehended on or about 2 November 2010. (2) Charge 2, Specification: At or near an International Airport, on or about 30 June 2010, through design missed the movement of the flight with which she was required in the course of duty to move. b. Her sentence, adjudged on 12 January 2011, consisted of reduction to the grade/rank of Private (PVT)/ E-1, confinement for five months, and to be discharged from the service with a Bad-Conduct Discharge (BCD). 9. Two DA Forms 4187 show the below changes to her duty status as a result of her court-martial: * PDY to Confined by Military Authorities – 12 January 2011 * Confined by Military Authorities to PDY – 9 April 2011 10. Special Court-Martial Order Number 119, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma on 30 August 2011, noted the sentence had been finally affirmed and ordered the bad conduct discharge be executed. 11. The applicant was discharged on 21 October 2011, under the provisions of Army Regulation 635-200, (Active Duty Enlisted Administrative Separations) chapter 3, by reason of court-martial (Other), in the rank/grade of private (PVT)/E-1. Her DD Form 214 shows her service was characterized as bad conduct, reflects a Separation Code of JJD, and a Reentry Code of 4. She completed 3 years, 1 month, and 21 days of net active service during the covered period and had lost time from 30 June 2010 to 2 November 2010 and from 12 January 2011 to 8 April 2011. Additionally, her DD Form 214 does not list any personal decorations or awards. 12. 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. 13. 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. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of her bad conduct discharge (BCD). She contends she had a mental health condition that mitigated her misconduct, PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 29 January 2008; 2) The applicant served in Iraq from October 2009-June 2010; 3) At a Court Martial hearing on 08 March 2011, the applicant was found guilty of missing movement of the flight to return to Iraq and going AWOL on 30 June 2010. She was sentenced to reduction of rank, confinement for five months, and a BCD; 4) The applicant was discharged on 21 October 2011 with a Chapter 3, by reason of court-martial, and her service was characterized as bad conduct. c. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and VA’s Joint Legacy Viewer (JLV) were also reviewed. d. The applicant reported returning to her family for emergency leave during her deployment to Iraq. She stated in her application that she did not return to her unit due to “pertinent family issues.” She did eventually return to the military on 02 November 2010. The applicant was Command referred to the Army Substance Abuse Program (ASAP) on 15 November 2010. She was diagnosed with alcohol abuse and substance (methamphetamine) use disorder. She was enrolled into an outpatient substance abuse treatment program. On 23 November 2010, she completed a routine Command Directed Mental Health evaluation. Her command was concerned for the applicant and wanted an assessment for her suitability for additional behavioral health treatment. During the evaluation, the applicant reported a long history of alcohol and substance abuse since she was a teenager. She also experienced numerous traumas and significant losses prior to her enlistment. She had received outpatient and inpatient psychotherapy along with psychiatric medication prior to active service. The applicant also reported stress related to significant family issues, and she did not want to return to her deployment till “she was ready.” The applicant stated she used marijuana and methamphetamines on numerous occasions before returning. The applicant was thoroughly assessed for PTSD, and she did report her unit received mortars during the deployment. She was still impacted by sudden noises, but she did not endorse additional symptoms associated with PTSD. She was diagnosed with adjustment disorder with depressed mood, cleared for administrative action, and was recommended for behavioral health treatment. The applicant declined to engage in any treatment beyond the command directed substance abuse counseling she was currently attending. The applicant did complete her substance abuse treatment in December 2010. e. An examination of JLV was void of behavioral health records, and the applicant is not receiving service-connected disability. She did not provide any civilian medical documentation. f. Based on the available information, it is the opinion of the ARBA Medical Advisor that there is insufficient evidence to support the applicant had a condition or experience that mitigated her misconduct. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends she was experiencing PTSD while on active service. B. Did the condition exist or experience occur during military service? Yes, the applicant contends she was experiencing PTSD while on active service. C. Does the condition or experience actually excuse or mitigate the discharge? Partially, there is insufficient evidence the applicant was experiencing PTSD at the time of her misconduct. She consistently reported not returning from emergency leave due to family concerns and her active drug use. The applicant was assessed for PTSD during a mental health evaluation, and the applicant at that time did not fit criteria. Going AWOL can be an avoidant behavior and a sequel to PTSD, but this is not sufficient to establish a history of PTSD during active service. However, the applicant contends she was experiencing PTSD that mitigated her misconduct, and per Liberal Consideration her contention is sufficient for the board’s consideration. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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, her record of service to include deployment, the frequency and nature of her misconduct and the reason for her 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. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding her misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined 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, 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) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. b. 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. c. 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 5. 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) AR20220005855 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1