IN THE CASE OF: BOARD DATE: 31 August 2023 DOCKET NUMBER: AR20230001044 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AR2002070572 on 4 June 2002. 2. The applicant states he is 60 years old and needs help with life. He has diabetes and would like to be able to apply for Department of Veterans Affairs (VA) healthcare and housing benefits. 3. On his DD Form 293, the applicant notes post-traumatic stress disorder (PTSD) is related to his request as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 5 August 1980, the applicant enlisted in the Regular Army for a 4-year service obligation. Upon completion of training and award of military occupational specialty 67V (Observation/Scout Helicopter Repairer), he was assigned to Hawaii and arrived on 21 February 1981. He was promoted to his highest grade held Private First Class/E-3 on 5 August 1981. 5. On 1 June 1983, before a special court-martial at Schofield Barracks, HI, the applicant was convicted of the following violations of the Uniform Code of Military Justice: * two specifications of wrongful possession of marijuana, and one specification of wrongful distribution of marijuana on or about 12 January 1983 * two specifications of wrongful possession of marijuana, and one specification of wrongful distribution of marijuana on or about 2 March 1983 * two specifications of being disrespectful in language to a noncommissioned officer (NCO) on or about 2 May 1983 and 4 May 1983; and one specification of assaulting an NCO on or about 2 May 1983 6. His sentence included a BCD, three months confinement at hard labor, forfeiture of $300 pay for three months, and reduction to the lowest enlisted grade. On 4 August 1983, his sentence was approved, and the record of trial was forwarded for appellate review. 7. He was released from confinement on 15 August 1983, and placed on excess leave on 19 October 1983, while awaiting completion of appellate review. 8. Special Court-Martial Order Number 95, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 14 August 1984, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 9. On 24 August 1984, the applicant was discharged in the lowest enlisted grade pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel). His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as BCD. He was credited with completing 3 years, 10 months, and 5 days of net active service. 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. On 4 June 2002, the ABCMR considered the applicant s petition for an upgrade of his discharge. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. 12. On 16 February 2023, the applicant was asked to provide medical documentation to support his PTSD claim. However, he did not respond. 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in the application of their equitable relief authority to ensure each case will be assessed on its own merits. 14. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request to upgrade his BCD 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 5 August 1980; 2) On 1 June 1983, before a special court-martial at Schofield Barracks, HI, the applicant was convicted of two specifications of wrongful possession of marijuana, and one specification of wrongful distribution of marijuana on or about 12 January 1983, two specifications of wrongful possession of marijuana, and one specification of wrongful distribution of marijuana on or about 2 March 1983, two specifications of being disrespectful in language to a noncommissioned officer (NCO) on or about 2 May 1983 and 4 May 1983, and one specification of assaulting an NCO on or about 2 May 1983; 3) On 24 August 1984, the applicant was discharged in the lowest enlisted grade pursuant to his court-martial sentence under the provisions of AR 635-200. 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 was void of any BH diagnosis or treatment history for the applicant and he does not have a service-connected disability. Records showed the applicant engaged the VA for housing assistance in December 2021, was enrolled into the housing program in January 2022, and discharged from the program in July 2022 due to his total income exceeding the threshold to be in the program. No civilian BH records were provided for review. d. The applicant is requesting reconsideration for his previous request for upgrade of his BCD to honorable. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after military service and he provided no documentation supporting his assertion of PTSD. In absence of documentation supporting his contention, there is insufficient evidence that his misconduct was mitigated by PTSD and insufficient evidence to support an upgrade of his discharge characterization. e. Based on the available information, it is the opinion of the Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor that there is insufficient evidence that the applicant had an experience or condition during his time in service that mitigated his misconduct. However, the applicant contends his misconduct was related to PTSD and per liberal guidance, his 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 contends his misconduct was related to 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. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after military service and he provided no documentation supporting his assertion of PTSD. In absence of documentation supporting his contention, there is insufficient evidence that his misconduct was mitigated by PTSD and insufficient evidence to support an upgrade of his discharge characterization. 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, 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. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his 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 :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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002070572 on 4 June 2002. 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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 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. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. 5. 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; traumatic brain injury; sexual assault; or sexual harassment. Boards are 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. 6. 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) AR20230001044 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1