IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230000993 APPLICANT REQUESTS: Upgrade of his bad conduct discharge (BCD). Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Medical documents * In-service personnel documents * Agency letter to Applicant, dated 11 August 2020 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: a. He joined the U.S. Army Reserve at the age of 17, and subsequently volunteered for the Active Army three months later. He was discharged in July 1986 with a BCD due to a court-martial. This has been a source of personal embarrassment and shame. The basis of this request is the values and ethics the U.S. Army instilled in him, while not initially observable or exemplified took hold deep inside him. He understands a valid reason for consideration of a discharge upgrade is what is different in the military environment now that may have led to a different outcome and discharge status. b. In the field he was recognized as an outstanding Soldier. He received a letter of commendation, two letters of appreciation, and a certificate of achievement. He was recognized and identified by his company commander as an outstanding field Soldier and was asked to be his personal driver. He was chosen because of his can-do attitude and perseverance in completing tasks. c. It was in garrison where he found himself making bad decisions and self- sabotaging his military career and reputation. Understandably, his company commander took his bad garrison choices as a personal affront to his judgement of character. In his first year at Fort Lewis, WA, he was out drinking at a noncommissioned officers club with another Soldier. They met another Soldier that asked them if they wanted to continue drinking at his on-post housing and they agreed. They drank late into the evening and decided at his urging to spend the night on the couch. At some point in the evening, he woke up and realized the other Soldier had pulled his pants down and was sexually molesting him. He had no idea how to handle this and was scared because he was still in his house. He was concerned he may get violent or have a weapon nearby. During the rest of that night, he went over what he could have, or should have done differently. d. To this day he carries shame that as a young man he didn't get up and confront him, nor call the military police. He never told anyone of this event until two years ago. His continued abuse of alcohol in the military led to several bad choices leading to his court-martial. Seven years ago, he finally sought medical attention and was clinically diagnosed with post-traumatic stress disorder (PTSD) and depression. He has overcome the challenges life has set before him as well as the choices he made. He is proud of his military service; however, he is not proud of how it ended. 3. Having had prior honorable service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 26 April 1983, for 3 years. 4. On 18 January 1985, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for negligently losing a M-16A1 Rifle, on or about 17 January 1985. His punishment included reduction to the grade of E-2, forfeiture of $152.00 pay month for one month, and 14 days restriction and extra duty. 5. A Standard Form 558 (Emergency Care and Treatment) shows he received treatment at the Mannheim, Germany, Health Clinic on 13 November 1985, for attempted suicide. 6. Before a general court-martial on 6 December 1985, at Bad Kreuznach, Germany, the applicant was found guilty of one specification of damaging military property, on 10 November 1985; one specification of possessing, with the intent to distribute, 19 grams of marijuana in the hashish form, on 28 September 1985; one specification of unlawfully grabbing and pushing a Soldier, on 2 November 1985; one specification of unlawfully grabbing the neck of a Soldier, on 8 November 1985; and one specification of breaking restriction, on 8 November 1985. 7. The court sentenced him to a BCD, reduction to the grade E-1, forfeiture of all pay and allowances, and confinement for 15 months. The sentence was approved on 9 January 1986; however, his confinement was reduced to nine months. The record of trial was forwarded for appellate review. 8. The U.S. Army Court of Military Review affirmed the findings and sentence on 19 February 1986. 9. On 8 May 1986, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 10. General Court-Martial Order Number 447, issued by the U.S. Army Correctional Activity, Fort Riley, KS, on 17 June 1986, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 11. The applicant was discharged on 2 July 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 3, Section IV, as a result of court-martial. His service was characterized as bad conduct. He was credited with 2 years, 7 months, and 13 days of net active service this period with 203 days of time lost. 12. On 1 June 2019, the applicant petitioned the ABCMR requesting upgrade of his BCD. The ABCMR staff requested that the applicant provide medical documents to support his claim of mental health issues as a contributing factor in the circumstances that resulted in his discharge. On 11 August 2020, his case was administratively closed as no response was received. 13. The applicant provides the following (provided in entirety for the Board): a. Multiple medical documents show he was diagnosed and received treatment for depression, anxiety, and PTSD. b. In-service personnel records that detail accomplishments and events throughout his military career. 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. 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. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his bad conduct discharge (BCD). b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 26 April 1983 following service in the U.S. Army Reserve * Applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice on 18 January 1985, for negligently losing a M-16A1 Rifle. * Before a general court-martial on 6 December 1985, at Bad Kreuznach, Germany, the applicant was found guilty of one specification of damaging military property, on 10 November 1985; one specification of possessing, with the intent to distribute, 19 grams of marijuana in the hashish form, on 28 September 1985; one specification of unlawfully grabbing and pushing a Soldier, on 2 November 1985; one specification of unlawfully grabbing the neck of a Soldier, on 8 November 1985; and one specification of breaking restriction, on 8 November 1985. * The applicant was discharged on 2 July 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 3, Section IV, as a result of court-martial. His service was characterized as bad conduct. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, self-authored letter, medical documentation and documents from his service record and separation packet. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant reported that in his first year at Fort Lewis, WA, he was out drinking at a noncommissioned officers club with another soldier. They met a soldier that asked them if they wanted to continue drinking at his on-post housing and they agreed. They drank late into the evening and decided at his urging to spend the night. At some point in the evening, he woke up and realized the soldier, whose home they were at, had pulled his pants down and was sexually molesting him. He had no idea how to handle this and was scared because he was still in his house. He was concerned he might get violent or have a weapon nearby. During the rest of that night, he went over what he could have done differently. To this day he carries shame that as a young man he did not confront his perpetrator or call the military police. He never told anyone of this event until two years ago. e. The applicant s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain all of his service treatment records (STR). However the following was available for review, a Standard Form 558 (Emergency Care and Treatment) shows he received treatment at the Mannheim, Germany, Health Clinic on 13 November 1985, for attempted suicide. In addition, on 8 May 1986, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. f. The applicant submitted medical documentation for review, including the diagnostic portion of a neuropsychological evaluation dated 19 July 2021. Although, he did not submit the full report for review, the evaluation diagnosed him with Mild Neurocognitive Disorder, Major Depressive Disorder, Generalized Anxiety Disorder, and Post- Traumatic Stress Disorder. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review, likely due to the characterization of his discharge. No other records or medical documentation was provided. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence that the applicant had a behavioral health condition and experience (MST) during military service that would partially mitigate his discharge. 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 asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant reports experiencing MST during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant contends that he was sexually molested while in military service and, although he is not service-connected, there is indication of behavioral health conditions including: Mild Neurocognitive Disorder, Major Depressive Disorder, Generalized Anxiety Disorder, and Post-Traumatic Stress Disorder. While it is unclear whether the identified behavioral health conditions were present during military service, his contention will be accepted in this opine. The applicant s one specification of breaking restriction is mitigated by his behavioral health conditions since there is a natural sequela between MST, anxiety, and depression and avoidance as well as difficulty with authority. However, the intent to distribute 19 grams of marijuana in the hashish form; damaging military property; and the physical assault of another soldier are not mitigated by any of his behavioral health conditions including: MST, Mild Neurocognitive Disorder, Major Depressive Disorder, Generalized Anxiety Disorder, and Post-Traumatic Stress Disorder. None of his behavioral health conditions impact his ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. 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 BH Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. A majority of the Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being only partially mitigated by PTSD. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found the partial mitigation of his misconduct by his behavioral health conditions sufficient as a basis for partial relief. The member in the minority determined the applicant s character of service should be changed to under honorable conditions (general). ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :xx : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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 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. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 3. 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. 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 3, section IV provided that a member would be given a BCD 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. 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. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), 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 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. 7. 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. 8. 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, 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) AR20230000993 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1