IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220008264 APPLICANT REQUESTS: Reconsideration of her previous request to change her character of service from bad conduct to honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 22 April 2022 * Docu Family Medical Center letter, 29 November 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120001582 on 1 August 2012. 2. The applicant states she is requesting an upgrade so that she can apply for benefits. She suffers from post-traumatic stress disorder (PTSD), anxiety, and depression. 3. On 7 July 1983, the applicant enlisted in the Regular Army. She completed training and she was awarded military occupational specialty 76Y (Unit Supply Specialist). 4. On 18 September 1984, the applicant was assigned to Company A, 1st Support Battalion, 3rd Armored Division, located in Germany. 5. On 24 July 1985, the applicant was convicted by a special court-martial of: * one specification of missing unit movement on 29 April 1985 * one specification of making a false official statement on 5 April 1985 that she was placed on quarters The Court sentenced her to a reduction to private (PV1)/E-1, forfeiture of $100.00 pay per month for 6 months, confinement for 6 months, and a bad conduct discharge. 6. On 19 September 1985, the convening authority approved the sentence, and except for the bad conduct discharge, the sentence was ordered executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 7. On 22 January 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 8. Special Court-Martial Order Number 104, issued by Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, 20 May 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed. 9. The applicant was discharged from the Army on 30 May 1986. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3, section 4, as the result of court-martial, with the issuance of a Bad Conduct Discharge Certificate (Separation Code JJD, Reentry Code 4). She completed 5 years, 4 months, and 17 days of total active service with time lost from 24 July to 15 December 1985. Block 13 shows she was awarded or authorized the following: * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon * Army Achievement Medal * Army Good Conduct Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 10. On 12 February 2015, the Board denied her request for an upgrade of his discharge. The Board stated she was given a bad conduct discharge pursuant to an approved sentence of a special court-martial. The appellate review was completed, and the affirmed sentence ordered duly executed. All requirements of law and regulation were met, and her rights were fully protected. The fact that she believes she was a model Soldier or that she needs medical benefits does not negate the fact that she was convicted by a special court-martial that warranted a bad conduct discharge. 11. The applicant provides a letter issued by Docu Family Medicine Center, 29 November 2022, which shows in part the applicant is a patient under their care. The applicant has a diagnosis of anxiety and depression which is controlled under current treatment. 12. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a special or a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 13. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of her previous request for an upgrade of her bad conduct discharge (BCD) characterization of service to honorable. She contends her request is related to PTSD, anxiety, and depression. 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 7 July 1983; 2) On 18 September 1984, the applicant was assigned to Company A, 1st Support Battalion, 3rd Armored Division, located in Germany ; 3) On 24 July 1985 she was convicted by special court-martial for one specification of missing movement on 29 April 1985 and one specification of making a false official statement on 5 April 1985 that she was on quarters. Her sentence was a reduction to private (PV1)/E-1, forfeiture of $100.00 pay per month for 6 months, confinement for 6 months, and a bad conduct discharge; 4) Special Court-Martial Order Number 104, issued by Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, 20 May 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed; 5) She was discharged on 30 May under provisions of AR 635-200, paragraph 3, section 4, as the result of court-martial. c. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s period of service, and no hardcopy military medical records were provided for review. A review of the VA electronic medical record (JLV) was void of any medical treatment history for the applicant and she does not have a service- connected disability. Included in the applicant’s packet is a letter from a civilian provider from the Docu-Family Medical Center, Savannah, GA, dated 29 November 2022, that states the applicant is a patient under the provider’s care and that applicant has diagnoses of anxiety and depression which are controlled by medication. The letter is void of any treatment history. No other hardcopy medical records were provided for review. d. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience that mitigated her misconduct. However, she appears to contend her misconduct was related to PTSD, anxiety, and depression, and per Liberal Consideration guidance her 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 appears to contend her misconduct was associated with PTSD, anxiety, and depression. She also provided a letter from civilian provider dated 29 November 2022 that states he is treating the applicant for anxiety and depression, which is controlled by medication. The letter was void of any treatment history. 2. Did the condition exist or experience occur during military service? Yes. It appears the applicant contends the conditions existed during military service 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant contends her misconduct was associated with PTSD, anxiety, and depression. However, there is no evidence in the records of the applicant receiving a BH-related diagnosis or treatment during military service, and although she provided a letter from a civilian provider stating that she is currently diagnosed with anxiety and depression, the letter fails to include PTSD, and lacks information related to treatment history, to include precipitating event(s), date/year of symptom onset, course of treatment, or other information that might associate the diagnoses with military service. Also, it should be noted that in the applicant previous request, she made no mention of a BH-related history, instead the applicant contended she needed VA benefits to address hypertension symptoms that were also present during her time service. Given the above, it is the opinion of this advisor that there is insufficient evidence to support the existence of a BH condition during the applicant’s time in service, thus no mitigating factor related to the applicant’s misconduct. 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, her record of service, 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120001582 on 1 August 2012. 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. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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) AR20220008264 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1