IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220007534 APPLICANT REQUESTS: Upgrade of his bad conduct discharge (BCD), and appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 suffers from Post-traumatic Stress Disorder (PTSD), due to his work on the Jonestown massacre clean up in November 1978. He was part of the unit (16th Field Service Company, 240th Quartermaster Battalion), sent to Dover Air Force Base, DE, to process the remains from Jonestown, Guyana. He is attempting to apply for a Veterans Administration home loan based on his six years of honorable service. 3. On his DD Form 149, the applicant notes PTSD is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. However, he did not provide documentation of a mental health diagnosis. 4. The applicant enlisted in the Regular Army on 31 October 1975, for 3 years. He reenlisted on 15 September 1978, for 3 years. 5. On 20 December 1978, the applicant received a letter of appreciation for the outstanding work he performed while assisting with processing of deceased personnel from Jonestown, Guyana, at Dover Air Force Base, DE, during the period 26 November to 3 December 1978. 6. The applicant reenlisted on 30 September 1981, for 6 years in pay grade E-5. 7. Before a special court-martial on 14 April 1983, at Fort Bliss, TX, the applicant was found guilty of: * one specification of stealing a U.S. Government payroll check, of a value of about $231, on or about 31 December 1982 * one specification of with the intent to defraud, falsely make the signature of another Soldier, on or about 31 December 1982 * one specification of with the intent to defraud, utter a certain check, that would operate to the legal prejudice of another Soldier, on or about 31 December 1982 * one specification of wrongfully and unlawfully steal certain mail matter, on or about 31 December 1982 8. The court sentenced him to confinement at hard labor for three months, and a BCD. The sentence was approved on 9 May 1984, and the record of trial was forwarded for appellate review. 10. The U.S. Army Court of Military Review affirmed the findings and sentence on 12 September 1984. 11. The applicant was discharged on 8 November 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms 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 8 years, 10 months, and 6 days of net active service this period. He was awarded or authorized the: * Good Conduct Medal (2nd Award) * Army Commendation Medal * Humanitarian Service Medal * Overseas Service Ribbon * 12-Gauge Shotgun Expert Badge * M-203 Expert Badge * Pistol Expert Badge * Rifle M-16 Badge 12. The applicant's DD Form 214 does not note his continuous honorable active service that is required for members who honorably served their first term of enlistment (see Administrative Notes). 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. 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. 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his bad conduct discharge and appearance before the Board. 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) Applicant claims he now suffers PTSD due to his work following the Jonestown massacre in November 1978. He was sent to Dover AFB to process remains following the event in Guyana. He asserts PTSD associated with his request but did not provide any documentation. (2) He initially enlisted in the RA on 31 October 1975. (3) Before a special court-martial, adjudged on 14 April 1983, he was found guilty of multiple specifications associated with fraud, forgery, and theft as outlined in the ROP and supporting documents. (4) He was discharged on 8 November 1984 under authority of AR 635-200 Chapter 3, as a result of court-martial, characterized as bad conduct. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD associated with application. Applicant provided no additional medical/psychiatric records. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. There is no indication of any service-connected conditions, and his record is void of relevant clinical data. f. Other Query of HAIMS did not return any documents for this applicant. 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 PTSD associated with the circumstances of his discharge. (2) Did the condition exist or experience occur during military service? Yes. Per applicant’s assertion only. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD at the time of his offense/discharge. Under liberal consideration guidelines his assertion alone is worthy of consideration by the Board. However, there is no evidence in his record, nor has he provided any evidence, of PTSD or other associated mental health conditions at the time of his offenses/discharge. Moreover, PTSD does not typically impair one’s ability to distinguish right from wrong and adhere to the right; therefore, even presumptive PTSD based on his assertion would not mitigate the offenses (generally associated with fraud and theft) for which he was discharged. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board agreed that there was insufficient evidence to change his SSN on his DD Form 214. The applicant consistently used the contested SSN throughout his military service. He did not use the requested SSN at any time during the period covered by his DD Form 214. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created, unless there is sufficient evidence that shows a material error or injustice. ? 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: Except for the correction addressed in Administrative Note(s) below, 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 to amend the decision of the ABCMR set forth in Dockets Number AR20100012161, on 16 November 2010. 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. ADMINISTRATIVE NOTE: A review of the applicant's record shows his DD Form 214, for the period ending 8 November 1984, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 751031 UNTIL 810929 ? 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. Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 3. 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. c. An UOTHC discharge is for members who submit a resignation or requests discharge for the good of the service, understanding they may be issued an undesirable discharge without board action. d. Chapter 3, section IV provided that a member 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. 4. 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. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, 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 (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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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 (TBI), 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 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 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, 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) AR20220007534 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1