IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220010131 APPLICANT REQUESTS: an upgrade of her bad conduct discharge (BCD) be upgraded. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149, Application for Correction of Military Record with statement * DD Form 214, Certificate of Release or Discharge from Active Duty * Post service achievements, awards, education, work resume * Character References (11) * Department of Veterans Affairs (VA) medical records 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 checked a block in her application showing her request is related to "Other Mental Health." She states, in effect, she is a different person now and she takes responsibility for the mistakes that cost her a military career. a. In her application, she admits to writing checks with insufficient funds and stealing checks from another Soldier and using those checks to get cash to pay her bills. She states she was compelled to commit these offenses because her mother was pressuring her to send money home. She was young and inexperienced with managing her finances. b. In October 1988, her psychiatric stability came into question, and she spent approximation five days with Psychiatric Services. While hospitalized an inspector came to question her about the investigation. He asked for a handwriting sample and inquired if she had any information about drug use or criminal activity. She told him she did not. After being released, she was ordered to undergo counseling with the Chaplin. She was doing well and getting things back on track when she was informed about the court- martial charges. She pled guilty and was sentenced to 13 months of confinement and ordered to pay restitution. She took advantage of the all the programs, to include counseling. After being released, her BCD made it difficult to find employment. She went on to graduate from college and worked as a juvenile probation officer, she helped individuals with mental health issues obtain housing, and became a foster parent. In 2007, she became an ordained minister. c. Although she made major progress, upgrading the characterization of her service will allow her to apply for State or Government employment and make her eligible for VA benefits. 3. The applicant enlisted in the Regular Army on 17 November 1987. The highest grade she held was private first class. 4. While assigned to Germany, the applicant self-referred to the 547th Dispensary Psychology Department on 25 October 1988. She was admitted on 26 October 1988. She reported having thought of murder and assault. She stated that the people in her unit were malicious toward each other (not towards her) and she wished to kill them. She also reported having urges to smoke and drink, which she had never done. The medical professional noted a depressed mood and suicidal ideations. She was admitted for further psychiatric evaluation and treatment. She was later diagnosed with adjustment disorder with depression and returned to duty on 27 October 1988. 5. Before a general court-martial on 21 February 1989, at Nuernberg, Germany, the applicant pled guilty and was found guilty of seven specifications of forgery, and two specifications of larceny. The court sentenced her to confinement for 18 months, forfeiture of all pay and allowances, she was required to pay the U.S a fine of $1,475.00 within 60 days from the date of the action or be confined for an additional seven months (thereby making the total period of confinement 25 months), reduction to the grade of private/E-1, and to be discharged from service with a BCD. The sentence was adjudged on 21 February 1989. 6. General Court-Martial Order Number 63, issued by Headquarters, 1st Armored Division, Germany, 30 May 1989, noted the applicant's sentence was approved and, except for the BCD, would be executed. 7. The U.S. Army Court of Military Review affirmed the findings and sentence on 12 September 1989. 8. The applicant underwent a separation physical on 11 November 1989. She indicated she was in good health and made no reference to having a mental health condition. She was found qualified for separation due to a mandatory removal date. 9. The applicant was discharged on 9 February 1990. Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200, Personnel Separations-Enlisted Personnel, chapter 3, as a result of court-martial, and her service was characterized as bad conduct. Additionally, she received a separation code of "JJD" and a reentry code of "4." She completed 1 year and 3 months of active service and she had lost time from 21 February 1989 to 8 February 1990. 10. The applicant provided evidence of her post-service achievements which includes an associate degree, employment resume, Gospel Ministry License, several leadership certificates, community service awards, and certificate/letters of appreciation. She further provided several letters of support which attest to her good character, honesty, trustworthiness, professionalism, work ethic, community service with children, and work in the church. 11. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: a. The applicant is requesting an upgrade of her bad conduct discharge (BCD). She contends her misconduct was associated with Other Mental Health Issues. 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 17 November 1987; 2) Before a general court-martial on 21 February 1989, at Nuremberg, Germany, the applicant pled guilty and was found guilty of seven specifications of forgery, and two specifications of larceny; 3) The applicant was discharged on 9 February 1990. Her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200, Personnel Separations- Enlisted Personnel, Chapter 3, as a result of court-martial. b. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s file was a Standard Form 513 (Medical Record Consultation Sheet), dated 25 October 1988, that shows she self-referred to the 547th Dispensary Psychology Department with complaints of suicidal and homicidal ideation, and was subsequently psychiatrically hospitalized. Also included in the file was a DA Form 3647 (Inpatient Treatment Record Cover Sheet) that show the applicant was admitted on 25 October 1988 and discharged on 27 October 1988, with a diagnosis of Adjustment Disorder with Depression, and Standard Form 88 (Report of Medical Examination), dated 17 November 1989, that showed the applicant medically cleared for administrative separation. No other hardcopy military BH-related documents were provided for review. A review of the VA electronic medical record was void of any treatment history for the applicant and she does not have a service-connected disability. No civilian BH-related records were provided for review. c. The applicant contends her misconduct was related to Other Mental Health Issues. A review of the records shows that while on active duty the applicant was psychiatrically hospitalized from 25 October 1988 to 27 October 1988 subsequent self- referring with reported suicidal and homicidal ideation. She was diagnosed with Adjustment Disorder with Depressed Mood. A review of the records also suggests the applicant’s onset of BH-related symptoms were secondary to her learning she was being investigated for misconduct. While there is evidence the applicant may have experienced Other Mental Health Issues, in the form of Adjustment Disorder with Depressed Mood, the diagnosis does not mitigate her misconduct characterized by forgery and larceny, as Adjustment Disorder with Depressed Mood does not impact one’s ability to differentiate between right and wrong and adhere to the right. 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 her misconduct was related to Other Mental Health Issues and she was diagnosed with Adjustment Disorder with Depressed Mood while on active duty. (2) Did the condition exist or experience occur during military service? Yes. The condition occurred while stationed in Germany (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant contends her misconduct was related to Other Mental Health Issues. A review of the records shows that while on active duty the applicant was psychiatrically hospitalized from 25 October 1988 to 27 October 1988 subsequent to self-referring with reported suicidal and homicidal ideation. She was diagnosed with Adjustment Disorder with Depressed Mood. A review of the records also suggests the applicant’s onset of BH-related symptoms were secondary to her learning she was being investigated for misconduct. While there is evidence the applicant may have experienced Other Mental Health Issues in the form of Adjustment Disorder with Depressed Mood, the diagnosis does not mitigate her misconduct, characterized by forgery and larceny, as Adjustment Disorder with Depressed Mood does not impact one’s ability to differentiate between right and wrong and adhere to the right. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Board members thoroughly reviewed the applicant's statement, supporting evidence, and the service record. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. a. The applicant's trial by a general court-martial was warranted by the gravity of the offense charged. Her conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which she was convicted. She was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. b. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (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 635-200, Personnel Separations-Enlisted Personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 3 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. 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. 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) AR20220010131 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1