IN THE CASE OF: BOARD DATE: 21 Jul 2023 DOCKET NUMBER: AR20230000166 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his dishonorable discharge to honorable, restoration of his rank to Specialist/E-4, time in service, and all lost pay. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Application (e-mail), dated 14 September 2022 * Army Board for Correction of Military Records (ABCMR) Decision Letter, dated 8 July 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20210014808 on 5 May 2022. 2. As a new argument the applicant, in effect, states in January 1989, he was involved in a traumatic event that caused him to have post-traumatic stress disorder (PTSD). He has been diagnosed with PTSD from four psychiatrists and one internal medicine doctor for this traumatic event. He was involved with an airplane crash that caused him to have PTSD. The military, government, prosecutors, and his military attorneys should have given him a psychiatric exam to see if he was mentally competent to stand trial. He has been determined to have a rating of 100 percent (%) PTSD for the traumatic event. He requests relief for being illegally tried due to his mental condition that no one took the time to evaluate, while in service. Please expedite his request due to the long years of injustice that the military has caused him. 3. The applicant enlisted in the Regular Army on 17 November 1983. Upon completion of training, he was awarded military occupational specialty 76Y (Unit Supply Specialist). He reenlisted on 14 November 1986 and again on 14 July 1988. The highest grade he attained was E-4. 4. Before a general court-martial on 22 May 1990, at Fort Wainwright, AK, the applicant was found guilty of one specification of rape; one specification of sodomy with force and without consent, one specification of burglary; and one specification of communication of a threat. The court sentenced him to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for eight years, and discharge from the service with a dishonorable discharge. The sentence was approved on 27 September 1990, and the record of trial was forwarded for appellate review. 5. The U.S. Army Court of Military Review affirmed the findings and sentence on 20 December 1991. 6. On 17 August 1992, the U.S. Court of Military Appeals denied the applicant s petition for review of the decision of the U.S. Army Court of Military Review. 7. General Court-Martial Order 164, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Command and Fort Leavenworth, Fort Leavenworth, KS on 4 March 1993, noted that the applicant's sentence had been affirmed and ordered the dishonorable discharge duly executed. 8. The applicant was discharged on 23 April 1993. He was credited with 7 years and 6 months of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the following entries in: * item 24 (Character of Service) Dishonorable * item 25 (Separation Authority) AR [Army Regulation] 635-200 (Personnel Separations Enlisted Personnel), Paragraph 3-11 * item 26 (Separation Code) JJD * item 27 (Reentry Code) RE-4 * item 28 (Narrative Reason for Separation) As a Result of Court-Martial - Other 9. The applicant petitioned the ABCMR requesting upgrade of his dishonorable discharge. On 5 May 2022, the Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of the applicant s records. 10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (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. 11. In reaching its determination, the Board can consider the applicant s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 12. MEDICAL REVIEW: a. The applicant requests reconsideration for his previous request to upgrade his dishonorable discharge to honorable. He contends his misconduct was related to 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 into the Regular Army on 17 November 1983; 2) Before a general court-martial on 22 May 1990, at Fort Wainwright, AK, the applicant was found guilty of one specification of rape; one specification of sodomy with force and without consent, one specification of burglary; and one specification of communication of a threat. The court sentenced him to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for eight years, and discharge from the service with a dishonorable discharge. The sentence was approved on 27 September 1990, and the record of trial was forwarded for appellate review; 3) General Court-Martial Order 164, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Command and Fort Leavenworth, Fort Leavenworth, KS on 4 March 1993, noted that the applicant's sentence had been affirmed and ordered the dishonorable discharge duly executed; 4) The applicant was discharged on 23 April 1993, under provision of AR 635-200, Chapter 3, as a result of court martial. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant s time in service. No military BH records were provided for review. A review of JLV showed the applicant 100 percent SC for PTSD. The Initial PTSD DBQ was not available for review by this advisor at the time of this writing. However, C&P Examination dated 18 June 2019 confirmed the applicant continued to meet diagnostic criteria for PTSD and referenced a 6 June 2019 rating decision that showed the applicant was found 50 percent SC for PTSD at the time. A review of JLV showed the applicant with minimal involvement with the VA for BH-related care. In fact, JLV showed the applicant s engagement consisted of two BH consultation requests submitted on 20 September 2012 and 9 October 2012 respectively. Both consultations reflected a provisional diagnosis of Adjustment Disorder with Depressed Mood, and noted the need for a PTSD screening. JLV was void of any encounters showing the applicant received BH treatment with the VA. According to the examiner of the 18 June 2019 C&P Examination, the applicant received/receives BH care from community providers. No civilian BH records were provided for review. d. The applicant requests reconsideration of his previous request to upgrade of his dishonorable discharge to honorable and restoration of his rank. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment during service. Post-service records showed the applicant 100 percent SC for PTSD. The applicant s misconduct characterized by one specification of rape, one specification of sodomy with force and without consent, one specification of burglary, and one specification of communication of a threat are not natural sequelae of PTSD and as such the applicant s PTSD did not mitigate his misconduct. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience during his time in service, however, the condition did not mitigate his misconduct. (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent SC for PTSD (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 requests reconsideration of his previous request to upgrade of his dishonorable discharge to honorable and restoration of his rank. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment during service. Post-service records showed the applicant 100 percent SC for PTSD. The applicant s misconduct characterized by one specification of rape, one specification of sodomy with force and without consent, one specification of burglary, and one specification of communication of a threat are not natural sequelae of PTSD and as such the applicant s PTSD did not mitigate his misconduct. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. 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. The Board considered the frequency and nature of his misconduct, and the reason for his separation. The applicant basis his request for reconsideration on having been involved with an airplane crash that caused him to have PTSD. He provided no supporting evidence and his record is void any reference to his having witnessed or otherwise been involved in a plane crash. Further, the Board found no nexus between the characteristics of PTDS and the misconduct of the applicant. 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 :xx :xx :xx 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 to amend the decision of the ABCMR in Docket Number AR20210014808 on 5 May 2022. 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 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. c. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 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. Chapter 3, section IV provided that a member would be given a dishonorable discharge pursuant only to an approved sentence of a general 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 (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder 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. 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, 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. 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) AR20230000166 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1