IN THE CASE OF: BOARD DATE: 20 September 2023 DOCKET NUMBER: AR20230005105 APPLICANT REQUESTS: an upgrade of his character of service from bad conduct to under honorable conditions (general) and a personal appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 16 February 2023 * self-authored statement * DA Form 2-1 (Personnel Qualification Record), 31 August 2000 * medical documentation, from 27 July 2001 through 28 January 2003 * Orders 118-26, discharge order, 28 April 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 13 May 2005 * medical letter from family nurse practitioner board certified (Mr. ), 9 November 2022 * character reference from first sergeant (1SG) retired , date unknown * character reference from Mr. date unknown * character reference from former private first class (PFC) , 25 October 2022 * character reference from Mr. ., date unknown * character reference from Mr. ., date unknown * character reference from former military police officer Ms. , date unknown * character reference from Ms. , date unknown * character reference from Mr. veteran, date unknown 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, in effect, he was a private first class (PFC) for a maintenance company at Fort Riley, Kansas. On 19 February 2003, he was found guilty by a special court martial of wrongful possession of marijuana with the intent to distribute, wrongful distribution of marijuana, and wrongful manufacture of marijuana. He served 6 and a half months at the regional correctional facility (RCF) in Fort Sill, Oklahoma. Until the incident, his military record states that there was nothing derogatory in his record to show that he served the United States Army, in a fashion other than honorably. a. Leading up to the events of October 2002, he can without a doubt admit that he was self-medicating with marijuana to combat the immense amount of pain from several injuries he sustained while in service. At the time he also was informed that his then wife, who was stationed at Fort Campbell, Kentucky, was cheating on him. While he states none of this excuses him of the wrongful use of marijuana, he certainly was not guilty of the distribution or manufacture of marijuana. He contends he was coerced by the Criminal Investigation Division (CID) into signing a confession and giving them consent to search his car after being held forcibly for hours and assaulted until he signed a confession; he contends the words in the confession were not his words and he did not write the words in the confession. b. On 27 July 2001, after celebrating with some friends, while driving back to Fort Riley, a semi-truck with an out-of-control trailer slammed into the front of his car which threw him off the road, he lost consciousness and woke up in the middle of the highway. He was taken to the hospital and discharged with "minor abrasions, and a bit shaken up". He states he suffered deep cuts to his face, bruising on his ribs, back, and neck. Later in the day he lost consciousness and was taken back to the hospital for possible concussion which was previously left untreated. c. After his accident, he was not able to perform to his fullest as a Soldier. His Company Commander, Captain (CPT) ., and Sergeant First Class (SFC) . did everything in their power to make sure he was no longer in the military by the end of that year. He was harassed by SFC ., for lack of performance and when he asked for help to see a doctor about his medical issues, he was told to "stop being a pussy". d. After months of not getting help and suffering in silence, he purchased marijuana with the intent to self-medicate the depression and pain which had gone ignored. On 25 October 2002, he had been out drinking with friends, he remembers being pretty "out of it" and having two CID agents come to his door. He believed he was going to be questioned about a sexual assault that happened in his barracks, so he agreed to go and be questioned. He was kept at the CID station for hours and they kept telling him that he was selling marijuana to other Soldiers, selling marijuana in Junction City, Kansas with the use of a cell phone and meeting places. He told them none of this was true and they threatened him with worse charges if he did not confess. He permitted them to search his car after an agent had struck him in the face while he was on the phone with his friend to bring his car to him, he states he still has the scar above his left eye and has documented sight loss. They told him he needed to sign paperwork to search his car officially. He says it was not until after he was being court-martialed when they made him sign a statement of words he did not see, violating article 31 (rights). His legal aid kept pressuring him to take a deal even thou he told him several instances were not true. He says he saw his paperwork while confined stating CPT ., offered another Soldier an article 15 if the Soldier told CID he was selling drugs with the use of a cell phone, he did not own one at the time. e. To this day he suffers from nightmares, loss of hearing in his left ear, lower back pains and chronic migraines. He has difficulty keeping jobs because of his medical conditions, emotional outbursts, inability to sleep and debilitating headaches. f. He states it has been years since his last attempt to file for benefits, and he believes his rights were violated as well as his mental state and medical issues being ignored. He admits he was guilty of possession of marijuana; however, he asserts that he was a scared, self-medicating, 20-year-old Soldier. He says there was no proof of him selling marijuana besides a coerced false confession and the word of another Soldier. g. Since his release from prison, he has lived a drug-free life and has not had a single run-in with the law. He is a father of two, he became a teacher, a federal security officer, a licensed bail enforcement officer, and a caregiver for the mentally handicapped. He tries to live his life as a model citizen. He thanks the Board for their consideration. 3. The applicant enlisted in the Regular Army on 29 August 2000. 4. His DA Form 2-1 (Personnel Qualification Record), shows he was promoted to the rank/grade of private first class (PFC/E-3) with a date of rank of 1 July 2002. 5. Special court-martial order number 6, dated 27 June 2003 shows the applicant was arraigned at a special court-martial. a. The applicant was convicted, pursuant to his plea of guilty, of Charge I, Article 112a (wrongful use of a controlled substance), and the below included specifications - (1) Specification 1: wrongful possession of 3/4 pounds of marijuana with the intent to distribute, on or about 25 October 2002. (2) Specification 2: wrongful distribution of some amount of marijuana, on divers occasions, between or about 15 August 2002 and on or about 23 October 2002. (3) Specification 3: wrongful manufacture of some amount of marijuana, between on or about 1 August 2002 and on or 31 August 2002. b. The sentence, which was adjudged on 19 February 2003, includes confinement for 12 months and discharged from the service with a bad-conduct discharge. c. The sentence was approved and, except for the part of the sentence extending to a bad-conduct discharge, was ordered to be executed, but the execution of that part of the sentence adjudging confinement in excess of 8-months was suspended for 8 months, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action. 6. Special court-martial order number 13, published by Department of the Army, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, on 24 February 2005 states the sentence to be confined for 12 months and a Bad-Conduct Discharge has been affirmed. Article 71(c) (execution of sentence, suspension of sentence) having been complied with; the Bad-Conduct Discharge will be executed. 7. He was discharged on 13 May 2005, under the provisions of Army Regulation 635- 200 (Personnel Separations Enlisted Personnel), by reason of court-martial, other, in the rank/grade of PV1/E-1. His service was characterized as bad conduct. His DD Form 214 does not reflect any personal decorations and it also shows: * item 12c (net active service this period) – 4 years, 1 month, and 29 days * item 26 (separation code) – JJD * item 27 (reentry code) – 4 * item 29 (dates of time lost during this period) – 19 February 2003 through 2 September 2003 8. On 7 March 2007 his request for discharge upgrade was denied from the Army Discharge Review Board (ADRB), they determined that he was properly and equitably discharged. 9. On 22 January 2009 the Army Board of Correction of Military Records (ABCMR) considered the applicants request for an upgrade of his reentry code, the Board denied his request. 10. He provides: a. A medical letter from Family Nurse Practitioner- Board Certified (FNP-BC), A.R., which summarizes the applicant's private health records and active-duty service records. A.R., concludes he believes the applicants substance abuse, Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI) and depression are caused by his active-duty service. The applicants TBI and PTSD led to his substance abuse with marijuana and court martial. It is in A.R., opinion that "the Department of Veteran Affairs [sic] should upgrade his discharge due to his medical conditions on active-duty Army". The applicant has a current diagnosed disability of PTSD, TBI and depression. b. The below 8-character reference letters, state, in effect: (1) First Sergeant (1SG) retired ., states the applicant was honest about his mistakes and fully accepted responsibility for his actions. He has worked to improve his life and reputation while earning back his status as an outstanding citizen to both his state and our nation as a teacher, father, and caregiver. (2) Mr. , the applicant displayed a level of structure, self-discipline, integrity, and mentorship that he finds admirable and that he is a true example of honor, courage, and commitment. (3) Former Private First Class (PFC) ., dated 25 October 2022, states the applicant was a squared-away gentlemen, dependable and someone who he was proud to have served with. He puts his family first and remains clean and sober per his job duties. (4) Mr. ., states the applicant was an outstanding Soldier and Battle Buddy, he is knowledgeable, caring, a loving father, honest, trustworthy, strong-willed with outstanding integrity and a strong moral compass. (5) Mr. ., disabled Veteran, states the applicant is honest, trustworthy, unwavering in his principles. (6) Ms. ., former Military Police Officer, states the applicant is a good father, decent, honest, and hardworking. (7) Ms. , states the applicant is trustworthy, dependable, supportive, and kind. (8) Mr. , United States Army Reserve Veteran, states the applicant is helpful, a go-to guy, stand-up, a role model for younger individuals, reliable, and trustworthy. c. medical documentation from 27 July 2001 through 28 January 2003 show the various times the applicant sought medical treatment for neck and back pain. d. medical documentation on 20 December 2002 shows the applicant was diagnosed with adjustment disorder, depression rule out major depression, suicidal gesture, and substance abuse. 11. Regulatory guidance in effect at the time provided a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial. The appellate review must be completed and affirmed before the sentence is duly executed. 12. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests an upgrade in the characterization of his service from Bad Conduct to Under Honorable Conditions (General). He indicated that PTSD, TBI and Other Mental Health conditions were related to his request. He stated that recently he was told by a doctor that he was showing symptoms of these conditions. He previously petitioned for relief from Army Discharge Review Board in 2007 and ABCMR in 2009. b. The applicant’s military record was summarized in the ABCMR ROP. Of note, the applicant entered service 29Aug2000. His MOS was 35N Wire System Equipment Repairer. A combat deployment was not shown. He was discharged 13May2005 under authority of AR 635-200, chapter 3, Section IV by special court-martial. He pled guilty and was found guilty of the following specifications: Wrongful possession of ¾ pounds of marijuana with intent to distribute (25Oct2002); wrongful distribution of marijuana on divers occasions (between 15Aug2002 and 23Oct2002); wrongful manufacture of marijuana (between 01Aug2002 and 31Aug2002). He was adjudged to be confined for a specified number of months and he was given a Bad Conduct Discharge. c. On 09Nov2022, a board-certified family nurse practitioner opined that it was at least as likely as not, that the applicant’s substance abuse, PTSD, TBI, and depression were caused by his active duty service. They also endorsed that the applicant’s injuries and medical conditions played a significant role in his court martial. Of note, the applicant sustained injuries to his head and neck as a result of the car accident on 27Jul2001. He was also seen for one visit for Moderately Severe Neck Strain, and Somatic Dysfunction, Cervical and Ribs in September 2001. And finally, he had one visit for back pain in October 2001 and two visits in December 2002. There was no record of prolonged or frequent profiling due to PTSD, TBI, or neck or back strain. d. The applicant was admitted in December 2002 and was diagnosed with Adjustment Disorder, Major Depression, Suicidal Gesture, and Substance Abuse (20Dec2002 Irwin ACH Record of Inpatient Treatment). He was discharged the following day. The submitted hospital document did not reveal any other pertinent details. JLV search revealed that the urine drug screen was positive for alcohol only. e. The applicant has not been service connected by the VA— letters from the VA (2009, 2017) informed him that due to the type of discharge, he was not eligible for VA health care benefits. That notwithstanding, the 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017 Clarifying Guidance were considered; and under this guidance, evidence does reasonably support that the applicant developed PTSD while in service. He also likely sustained traumatic brain injury during the car accident. It was noted that the offences that served as the basis for the court-martial took place almost one year after the car accident. Under the guidance of Liberal Consideration, the applicant’s PTSD and/or TBI condition is mitigating for the possession and use of marijuana. Substance use is associated with both PTSD and TBI conditions. However, none of the applicant’s psychiatric conditions would be considered mitigating for the manufacturing or distribution of marijuana as these actions represent the involvement of premeditation of misconduct which is not part of the natural history of PTSD, TBI or other boardable BH condition. It should be noted, the amount of the marijuana found in the applicant’s possession does suggest intent more than just personal use. Since one ounce of marijuana is considered to be enough for about 60 joints, then the applicant was convicted of having enough marijuana for approximately 720 joints. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the PTSD and TBI conditions are mitigating for the offenses which led to the applicant’s discharge, in part. (2) Did the condition exist, or did the experience occur during military service? Yes. The TBI and PTSD conditions were the result of car accident sustained during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The possession and use of marijuana is mitigated by the PTSD and TBI conditions. However, the manufacturing or distribution of marijuana offences are not mitigated. ? BOARD DISCUSSION: 1. 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding under the guidance of liberal consideration, the applicant’s PTSD and/or TBI condition is mitigating for the possession and use of marijuana. Substance use is associated with both PTSD and TBI conditions. However, none of the applicant’s psychiatric conditions would be considered mitigating for the manufacturing or distribution of marijuana as these actions represent the involvement of premeditation of misconduct which is not part of the natural history of PTSD, TBI or other boardable BH condition. 2. The Board thoroughly considered the applicant’s character letters of support attesting to his integrity, post service accomplishments and his attributes since being discharged. However, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. ABCMR 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. Furthermore, the Board agreed amount of the marijuana found in the applicant’s possession does suggest intent more than just personal use. The Board noted, since one ounce of marijuana is considered to be enough for about 60 joints, then the applicant was convicted of having enough marijuana for approximately 720 joints. Although, the applicant had made great strides in turning his life around and the Board applauds his years of sobriety. Based on the preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 3. The applicant’s request for a personal appearance hearing 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 hearing is not necessary to serve the interest of equity and justice in this case. ? 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 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. Army Regulation (AR) 635-200, in effect at the time, provides for the orderly administrative separation of Soldiers in a variety of circumstances. In addition, it maintains standards of performance and conduct through characterization of service in a system that emphasizes while still providing the suitability of persons to serve in the Army on the basis of their conduct and the ability to meet required standards of duty performance and discipline. a. Chapter 3 – This is the chapter that provides guidance and information on the information as it relates to the character of service and the description of separation. Characterization at separation will be based upon the quality of the Soldier's service, including the reason for the separation and guidance, subject to the limitations under the assorted reasons for separation. Paragraph 3-7 addresses characterization of service as follows: (1) Honorable discharge is appropriate when the quality of the Soldier’s service 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. An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. (2) Under honorable conditions (General) is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A General discharge may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. (3) Under other than honorable conditions discharge is an administrative separation from the Service. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances when the reason for separation is based on a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army. In addition, when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army is another valid circumstance. Some examples provided by the regulation are disregard by a superior or customary superior-subordinate relationships. An under other than honorable conditions discharge will be directed by a commander exercising general court-martial authority. b. AR 635-200, paragraph 3-11, states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. c. AR 635-200, paragraph 1-13, states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest grade per AR 600-8-19, chapter 10. 3. Title 10, United States Code, section 871, Article 71 (Execution of sentence; suspension of sentence) provides in paragraph 71(c)(1), if a sentence extends to death, dismissal, or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under section 861 of this title (article 61), that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals and - a. the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court; b. such a petition is rejected by the Court of Appeals for the Armed Forces; or c. review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and— (1) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court; (2) such a petition is rejected by the Supreme Court; or (3) review is otherwise completed in accordance with the judgment of the Supreme Court. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness guided Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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 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 provides standards and principles to guide Boards in the application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, the relative severity of the misconduct, mental and behavioral health conditions, an official governmental acknowledgment 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. 5. Army Regulation 15-185 (ABCMR) states applicant's do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005105 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1