IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220007859 APPLICANT REQUESTS: upgrade of his bad conduct discharge (BCD) to a more favorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-Authored Statements (three) 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 is a former Army Soldier who was being sent to leadership courses. In March 1982, he was serving in Frankfort, Germany, when he was found to have bought hashish. He received a BCD in 1983 with loss of pay and rank. He was in jail in Germany for a while. He was not offered the alternative of rehabilitation or counseling. This was before "No Tolerance" was in place. He is asking for reconsideration so that he might be upgraded to a regular discharge for the following reasons: he was not informed of his rights and the option to submit an appeal-he would have appealed; neither counseling or rehabilitation was offered- he would have gladly accepted rehabilitation and counseling; his enlarged heart condition was not accurately diagnosed during his admitting physical, which may have initially prevented his admission into the Army; and he was happy in the Army and about to have a promising career and re-enlist. 3. On his DD Form 293, the applicant notes post-traumatic stress disorder (PTSD) and mental health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 6 September 1979 for three years. His military occupational specialty was 31M (Multichannel Communications Equipment Operator). 5. The applicant was confined by military authorities on 8 June 1981 at Fort Ord, CA. 6. Before a general court-martial adjudged on 3 August 1981, at Fort Ord, CA, the applicant was found guilty of: * without authority, being absent without leave (AWOL) from on or about 1 July 1980 until on or about 15 December 1980 * without authority, being AWOL from on or about 17 December 1980 until on or about 8 June 1981 * with intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully make certain checks for payment of money upon a bank, then knowing he did not have sufficient funds in or credit with such bank for payment of the said checks on or about: 5 May 1981, 7 May 1981, 12 May 1981, 13 May 1981, 14 May 1981, 15 May 1981, 21 May 1981, and on or about 26 May 1981 7. The court sentenced the applicant to be discharged from the service with a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. Only so much of the sentence was approved on 2 December 1981, as provides for BCD, confinement at hard labor for 18 months, and forfeiture of all pay and allowances. The record of trial was forwarded for appellate review, the applicant was confined in the U. S. Disciplinary Barracks, Fort Leavenworth, KS, pending review. 8. The applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice at Bad Kreuznach, Germany, on 14 April 1982 for wrongful use of reproachful words towards Sergeant on or about 12 March 1982. His punishment consisted of reduction to private first class/E-3 (suspended) and extra duty. 9. Before a special court-martial adjudged on 11 May 1982, in the Federal Republic of Germany, the applicant was found guilty of: * wrongfully selling 6.00 grams, more or less, of marijuana in the hashish form on or about 6 November 1981 * wrongfully having in his possession, a smoking device containing an unknown amount of marijuana residue on or about 16 February 1982 10. The court sentenced the applicant to be discharged from the service with a BCD, confinement at hard labor for two months, forfeiture of $150.00 pay per month for two months and reduction to the grade of private/ E-1. The sentence was approved on 27 May 1982. The record of trial was forwarded for review by the Court of Military Review. Pending completion of appellate review, the applicant would be confined in the U. S. Disciplinary Barracks, Fort Leavenworth, KS. 11. Special Court-Martial Order Number 30, issued by the 7th Infantry Division and Fort Ord, Fort Ord, CA on 3 March 1983, noted that the sentence was finally affirmed, and ordered the BCD duly executed. 12. The applicant was discharged on 22 March 1983. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11 (Personnel Separations – Enlisted Personnel), as a result of court-martial-other. His characterization of service was bad conduct. He completed 2 years, 9 months, and 2 days of net active service. He lost time from 1 July 1980 to 14 December 1980 and 11 May 1982 to 7 July 1982. 13. The applicant provides self-authored statements, in which he requests some relief be considered regarding his current military status. In effect, time has passed since his involvement with the U. S. Armed Forces. It has taken a significant impact on his integrity and moral aptitude in defending or honoring his country, that he wished to serve voluntarily. He is very remorseful and sincere in the recognition of the laws that govern the conduct of all military personnel. He is remorseful for his behavior and humbly asks that the proper authorities re-evaluate his position. It has been his long- term goal to be acknowledged as a veteran. 14. 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. 15. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 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. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his bad conduct discharge. He contends his misconduct was related to PTSD and other mental health issues. 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 into the Regular Army on 6 September 1979; 2) Before a general court-martial on 3 August 1981 he was found guilty of being AWOL from on or about 1 July 1980 until on or about 15 December 1980 and from on or about 17 December 1980 until on or about 8 June 1981. He was also found guilty of intent to defraud for the procurement of lawful currency, wrongfully and unlawfully make certain checks for payment of money upon a bank…; 3) On 14 April 1982 he accepted NJP under provision of Article 15 of the UCMJ for wrongful use of reproachful words toward an NCO on or about 12 March 1982; 4) Before a special court-martial adjudged on 11 May 1982, in the Federal Republic of Germany, the applicant was found guilty of wrongfully selling 6.00 grams of marijuana on or about 6 November 1981, and wrongfully having in his possession a smoking device containing an unknown amount of marijuana residue on or about 16 February 1982; 5) The applicant was discharged on 22 March 1983. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 11 (Personnel Separations – Enlisted Personnel), as a result of court-martial-other. His characterization of service was bad conduct. c. A review of the electronic military medical record (AHLTA) was not conducted as the system was not in use during the applicant’s time in service. Hardcopy military medical records were included in the applicant’s packet, however, the records appeared void of any BH-related treatment history. A review of the VA electronic medical record (JLV) was void of any treatment history for the applicant and he does not have a service-connected disability. No hardcopy civilian medical records were provided for review. d. The applicant contends his misconduct was related to PTSD and other mental health issues but provided no additional context or content. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience that mitigated his misconduct. However, he contends his misconduct was related to PTSD and other mental health issues, and per Liberal Consideration guidance his contention is sufficient to warrant the Board’s consideration. ? 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 contends his misconduct was related to PTSD and other mental health issues. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant contends his misconduct was related PTSD and other mental health issues, however a review of the records was void of any BH- related treatment history during or after service and he provided no evidence supporting his claim. Additionally, even if the applicant met diagnostic criteria for PTSD during service, his misconduct characterized by multiple instances of intent to defraud upon a bank, and wrongful distribution of marijuana would not be mitigated as the misconduct is not normal sequela of PTSD. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, 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, his record of service, the frequency and nature of his misconduct, and the reason for his 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 his 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, USC, 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. 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. 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. 4. 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. Chapter 11 provided that an enlisted person would be given a bad conduct discharge 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. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (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 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. 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, 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 sexual assault or sexual harassment was unreported, or 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. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, 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 grounds. 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) AR20220007859 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1