IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20230000809 APPLICANT REQUESTS: reconsideration of his previous request for entitlement to Involuntary Separation Pay (ISP). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Self-authored letter in lieu of DD Form 149 (Application for Correction of Military Record) * Memorandum – Subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment, 25 August 2017 * List of Service-Connected Disabilities * Medical documents * Department of Veterans Affairs (DVA) letter, 19 October 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 AR20210013093 on 5 May 2022. 2. The applicant states in pertinent part that although his characterization of service was upgraded to Honorable, he was denied entitlement to ISP because of his narrative reason for separation (Court Martial) and separation code (JJD) remained the same. He contests that there are other separation codes and narrative reasons for separation available that are more applicable to the circumstances surrounding his discharge of which include: "JKK – Drug Abuse; JPD – Alcohol Abuse Rehabilitation Failure; JPC- Drug Rehabilitation Failure." He notes that changing his separation code to one of these reasons would permit him to receive separation pay. He is currently rated as 100 percent disabled by the DVA and initially sought treatment for his rated mental health condition in 2004. When he was discharged the level of treatment currently being received was not available. Since being discharged, he has endured many obstacles and has no objection to appearing before this Board to address his situation. 3. A review of the applicant's available service records reflects the following: a. On 9 June 1987, the applicant enlisted in the Regular Army. b. On or about 1 April 1998, the applicant was promoted to sergeant first class (SFC)/E-7. c. On 16 May 2002, the applicant was court-martialed for the wrongful use of cocaine (Article 112a of the Uniformed Code of Military Justice) on or about 6 November 2001 and 13 November 2001; 19 March 2002 and 26 March 2002. The applicant was found guilty of all charges. The court martial convening authority directed that he be reduced in pay grade to private (PVT)/E-1, confined for 30 days and discharged with a bad conduct discharge. The applicant's sentence was adjudged on 16 May 2002. d. On 30 June 2002, the applicant was reduced to PVT/E-1. e. On 10 September 2002, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss issued Special Court Martial Order Number 7 approving the execution of the applicant's sentence with the exception of the bad conduct discharge. f. On 22 January 2003, the U.S. Army Court of Criminal Appeals considered the applicant's entire record and the issues personally provided. The court elected to uphold the findings of guilty and the sentence approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and sentence were affirmed. g. On 9 April 2003, Headquarters, U.S. Army Armor Center and Fort Knox, issued Special Court Martial Order Number 65, directing that the applicant's bad conduct discharge be executed. h. On 23 July 2003, the applicant was discharged from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, Section IV (Court Martial). DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects the following: * Item 24 (Character of Service) – Bad Conduct * Item 26 (Separation Code) – "JJD" * Item 28 (Narrative Reason for Separation – Court Martial, Other i. On 9 June 2020, Docket Number 20190002686, the Board considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published Department of Defense (DoD) 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 medical records, and the review and conclusions of the advising official. The Board found sufficient evidence of in-service mitigating factors for some of the misconduct. After reviewing the application and all supporting documents, the Board found that relief was warranted based upon guidance for consideration of discharge upgrade requests. As a result, the Board recommended that a DD Form 214 for the period ending 23 July 2003 be issued changing the applicant's character of service to reflect as "Under Honorable Conditions (General)." j. On or about 26 May 2021, the applicant was issued a DD Form 214 reflective of the following: * Item 24 (Character of Service) – Under Honorable Conditions * Item 26 (Separation Code) – "JJD" * Item 28 (Narrative Reason for Separation) – Court Martial, Other 4. The applicant provides the following a: a. Memorandum – Subject: Clarifying Guidance to Military Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NRs) Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment, 25 August 2017, reflective of clarifying guidance to DRBs and BCM/NRs considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions, including post-traumatic stress disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. This document is provided in its entirety within the supporting documents for the boards review. b. List of Service-Connected Disabilities reflective of the applicant's rated and or claimed service-connected disabilities. The applicant directs attention to his diagnosed condition of anxiety disorder. c. Medical documents reflective of previous health care received by the applicant for varying medical conditions to include anxiety and depressive disorder. d. DVA letter dated 19 October 2022, reflective of the applicant being rated as 90 percent disabled, effective 1 December 2021; permanent and totally disabled effective 14 January 2014. 5. On 5 May 2022, Docket Number AR20210013093, the Board reviewed the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board concurred with the conclusion of the advisory official that because the applicant was discharged as the result of a court- martial sentence, he is not authorized ISP under the provisions of Department of Defense Instruction 1332.29 (Involuntary Separation Pay (Non-Disability). Based on a preponderance of the evidence, the Board determined there is no basis for paying the applicant ISP. 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Office of the Deputy Chief of Staff, G-, Program Analyst, Compensation and Entitlements Division advisory opinion, the Board concurred with the advising official finding the applicant was not eligible for Involuntary Separation Pay (ISP) on the separation date of 23 July 2003. The applicant’s upgrade of the character of service did not affect the ISP eligibility in accordance with DoD Instruction 1332.29, paragraph 3.4f(3) which states that a Service member who is separated as a result of execution of a court-martial sentence are not eligible for ISP. Based on this, the Board determined reversal of the previous Board decision is without merit and denied relief. 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 Board found 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 Docket Number AR20210013093 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. Department of Defense (DoD) Financial Management Regulation, currently in effect, provides in Section 350302 (Limitations of Eligibility) that Service members separated as a result of the execution of a court-martial sentence are not eligible for separation pay. 2. Department of Defense Instruction 1332.29 (Involuntary Separation Pay (Non-Disability), in effect at the time, provides that: a. Full payment of non-disability separation pay is authorized to members of the Regular and Reserve components involuntarily separated from active service who meet each of following four conditions: (1) The member is on active duty and has completed at least 6 years, but less than 20 years of active service; (2) The member's separation must be characterized as "honorable" and none of the conditions apply that are listed in subparagraph E3.2.3.2.2.1., enclosure 3, of DoD Directive 1332.14; (3) The member must be separated involuntarily by the military service concerned through either the denial of reenlistment or the denial of continuation on active duty under one of the following specific conditions: * the member is fully qualified for retention, but is denied reenlistment or continuation * separated under a reduction in force by authority as authorized under Title 10, United States Code (4) The member entered into a written agreement with the Secretary concerned to serve in the Ready Reserve of a reserve component for a period of not less than 3 years following the person's discharge or release from active duty. b. Half Separation Pay (Non-disability) is authorized to members of the Regular and Reserve components involuntarily separated from AD who meet each of following four conditions: (1) The member meets one of the criteria for active service specified above; (2) The member's separation must be characterized as "honorable" or "general;" (3) The member is being involuntarily separated by the military service concerned through either the denial of reenlistment or the denial of continuation on active duty, or is being separated instead of board action, under one of the following specific conditions: * the member is not fully qualified for retention and is denied reenlistment or continuation, under the following conditions— * expiration of service obligation * selected changes in service obligation * convenience of the Government * drug and alcohol abuse rehabilitation failure * security failure * the member is being separated under a Service-specific program established as a half-payment level by the Secretary of the Army (4) The member entered into a written agreement with the Secretary concerned to serve in the Ready Reserve of a reserve component for a period of not less than 3-years following the person's discharge or release from active duty. c. Service members separated under the following circumstances are not eligible for separation pay: (1) The member is separated from active duty at the member's own request. (2) The member is separated as a result of execution of a court-martial sentence. (3) The member is being separated under other than honorable conditions. (4) The member is an enlisted member who is separated for unsatisfactory performance or misconduct as specified in DoD Directive 1332.14. (5) The member is an officer who is separated for substandard performance or acts of misconduct or moral or professional dereliction under or Title 10, U.S. Code, Section 1166 or Section 1186. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000809 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1