IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230002789 APPLICANT REQUESTS: 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) * Self-authored letter 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 states he is requesting an upgrade to his discharge for post-traumatic stress disorder (PTSD) and because he is struggling for better opportunities due to his current discharge status. At the time of his discharge, he was very stressed and unable to make clear and logical decisions to help himself. Since his discharge he has been employed fulltime. However, this fulltime employment does not offer any benefits such as health insurance, dental, vision nor 401k options. He believes if his status is upgraded, he can obtain a position that offers all of the above. He is now a dedicated family man that works very hard to provide for his family. The upgrade would improve the quality of life for him and his family. 3. On 5 October 1984, the applicant enlisted in the Regular Army for 4 years. Upon completion of training, he was awarded military occupational specialty 36H (Dial/Manual Central Office Repairer). 4. On 17 June 1986, the applicant received non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by wrongfully possessing and distributing Valium, on or about 4 January 1986. His punishment included reduction in grade to E-2 and 14 days extra duty. 5. Before a general court-martial on 1 October 1986, at Camp Henry, Taegu, Korea, the applicant was found guilty of one specification of wrongful distribution of Valium, on or about 4 January 1986. The court sentenced him to forfeiture of all pay and allowances, confinement for six months, and a BCD. The sentence was approved on 24 October 1986, the execution of that part of the sentence adjudging confinement in excess of three months was suspended for 2 years. The record of trial was forwarded for appellate review. 6. On 5 December 1986, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 7. On 11 December 1986, the applicant was placed on excess leave. 8. The U.S. Army Court of Military Review affirmed the findings and sentence on 20 February 1987. 9. General Court-Martial Order Number 368, issued by the U.S. Army Correctional Activity, Fort Riley, KS on 16 June 1987, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 10. The applicant was discharged on 26 June 1987. 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 with Separation Code JJD and Reentry Code 4. His service was characterized as bad conduct. He was credited with 2 years, 6 months, and 11 days of net active service this period with 71 days of time lost. 11. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. 12. 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. 13. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his bad conduct discharge. He contends PTSD mitigates his discharge. 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 5 October 1984. * On 17 June 1986, the applicant received non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by wrongfully possessing and distributing Valium, on or about 4 January 1986. His punishment included reduction in grade to E-2 and 14 days extra duty. * Before a general court-martial on 1 October 1986, at Camp Henry, Taegu, Korea, the applicant was found guilty of one specification of wrongful distribution of Valium, on or about 4 January 1986. * The applicant was discharged on 26 June 1987. 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 with Separation Code JJD and Reentry Code 4. His service was characterized as bad conduct. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, ABCMR Record of Proceedings (ROP), DD Form 214, self-authored letter, and documents from his service record and separation. 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 states he is requesting an upgrade of his discharge and contends post-traumatic stress disorder (PTSD) mitigates his discharge. He reports struggling and lacking opportunities due to his current discharge status. Applicant states at the time of his discharge, he was very stressed and unable to make clear and logical decisions to help himself. Since his discharge he has been employed fulltime. However, this full-time employment does not offer any benefits such as health insurance, dental, vision nor 401k options. He believes if his status is upgraded, he can obtain a position that offers all of the above. He is now a dedicated family man that works very hard to provide for his family. The upgrade would improve the quality of life for him and his family. e. Due to the period of service, no active-duty electronic medical records were available for review and no hard copy medical documentation from the time of service were submitted for review. In addition, no medical documentation post-military service substantiating his assertion of PTSD were submitted for review. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. f. The only available medical documentation is a Mental Status Evaluation performed on 5 December 1986. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. The applicant evidenced no mental defect, emotional illness or psychiatric disorder, had the capacity to understand and participate in the proceedings, was mentally responsible and met retention requirements. g. After review of all available documentation, there is insufficient evidence of any mitigating BH condition. There is no evidence of any in-service BH diagnoses, and the VA has not diagnosed applicant with any BH conditions. And while the applicant self- asserted having PTSD during military service, the applicant did not provide any medical documentation of the diagnosis. 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 he was experiencing PTSD. (2) Did the condition exist or experience occur during military service? No. There is no evidence of any in-service BH condition. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD, however there is no medical documentation to support his claim. In addition, even if medical documentation existed, it would not mitigate his misconduct. There is no nexus between PTSD and distribution of a controlled substance. This misconduct is not part of the natural history or sequelae of any mental health condition. Further, PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. 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 :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, U.S. Code, 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 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. Section 1556 of Title 10, U.S. Code, 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 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. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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 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. 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, 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) AR20230002789 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1