IN THE CASE OF: BOARD DATE: 15 August 2023 DOCKET NUMBER: AR20230005603 APPLICANT REQUESTS: reconsideration of his prior request for an upgrade of his bad conduct discharge to a more favorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Department of Veterans Affairs (VA) Progress Notes (12 pages) 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 AR20190011759 on 1 April 2021. 2. The applicant states he is requesting an upgrade of his bad conduct discharge. He has struggled to cope after his last deployment and is suffering with post-traumatic stress disorder (PTSD) symptoms. He has struggled since returning from his last overseas tour and is currently being seen at the VA for his PTSD and his depression. 3. The applicant provides VA Progress Notes (12 pages) for medical health notes/visits from 1 July 2019 through approximately 27 September 2019 for a PTSD review. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 August 2000. b. A Standard Form 88 (Report of Medical Examination), dated 11 January 2000, shows the applicant underwent an examination for the purpose of enlistment on active duty. The applicant’s clinical evaluation was marked normal and in block 77 (Examinee) he was marked qualified for service. c. His Enlisted Record Brief (ERB) is void of foreign service entries to include any duty locations outside of the confinement facility at Fort Sill, OK. d. He was convicted by a special court-martial on 11 May 2004 for three specifications of wrongfully possessing, importing, and using marijuana on or about 14 February 2004 and between on or about 20 December 2004 and 20 January 2004. He was sentenced to a reduction to the lowest enlisted grade, Private (E-1), forfeiture of all pay and allowances, confinement for 17 months, and a bad conduct discharge. e. On 22 September 2004, the convening authority approved the sentence and except for that part of the sentence extending to the bad conduct discharge, ordered the sentence executed. f. General Court-Martial Order Number 105, dated 29 July 2005, shows the action taken by the Commander, Headquarters, I Corps, Fort Lewis, WA, dated 22 September 2004, was set aside on 21 March 2005, by the United States Army Court of Criminal Appeals, pursuant to Article 66, UCMJ. A new post-trial recommendation and action was directed. g. The applicant was convicted under a general court-martial on 11 May 2004 and the conviction was updated as follows: • wrongfully possess with intent to distribute, approximately 34.1 pounds of marijuana • wrongfully import approximately 34.1 pounds of marijuana into the customs territory of the United States • between on or about 20 December 2003 and 20 January 2004 wrongfully use marijuana h. On 29 July 2005, a recommendation having been received pursuant to R.C.M. 1106 and matters received pursuant to R.C.M. 1105 and 1106; the convening authority approved the sentence and except for that part of the sentence extending to the bad conduct discharge, ordered the sentence executed. The accused was credited with 3 days of confinement against the sentence of confinement. That portion of the sentence extending to confinement was considered served. i. General Court-Martial Order Number 50 dated 9 February 2006, after Article 71 (c) was complied with and the sentence was affirmed, ordered the bad conduct discharge executed. j. Orders 268-0681, dated 25 September 2006, discharged the applicant from active duty with an effective date of 6 October 2006. k. On 6 October 2006, he was discharged from active duty with a bad conduct discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 3 of Army Regulation (AR) 635-200 (active Duty Enlisted Administrative Separations) with a bad conduct discharge. He completed 5 years and 22 days of active service with 388 days (1 year and 23 days) of lost time. Block 12f (Foreign Service) shows 00 00 00 which indicates no foreign service time served and Block 18 (Remarks) does not list any deployments. It also shows he was awarded or authorized: • National Defense Service Medal • Army Service Ribbon 5. On 3 August 2023, a member of the Defense Finance Accounting Services staff provided email verification which indicated the applicant’s Master Military Pay Account from 2000 to 2005 (applicant was confined 2004) shows he served on two deployments: • Mauritius – 28 March 2002 to 3 July 2002 (3 months and 6 days) • Afghanistan – 6 November 2003 to 10 December 2003 (1 month and 5 days) 6. On 1 April 2021, the applicant was notified by the Army Board for Correction of Military Records (ABCMR) his request for a discharge upgrade was denied due to the extremely large quantity of illegal drugs found on his possession and his intent to distribute, as well as the findings of the medical advisor. The medical advisor determined neither PTSD nor major depressive disorder (MDD) were mitigating factors for wrongfully importing 34 pounds of marijuana into the United States nor wrongful possession with intent to distribute 34 pounds of marijuana. 7. By regulation, a member 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 the affirmed sentence ordered duly executed. 8. By law, the VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 10. MEDICAL REVIEW: a. Background: The applicant is applying to the ABCMR requesting reconsideration of prior request for upgrade of bad conduct discharge. 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: • Applicant asserts presence of PTSD as relevant to his request to the ABCMR. • Applicant enlisted in RA 23 August 2000. • He was convicted by a special court-martial on 11 May 2004 for three specifications of wrongfully possessing, importing, and using marijuana on or about 14 February 2004 and between on or about 20 December 2004 and 20 January 2004. • The conviction was subsequently updated as follows: • wrongfully possess with intent to distribute, approximately 34.1 pounds of marijuana • wrongfully import approximately 34.1 pounds of marijuana into the customs territory of the United States • between on or about 20 Dec 03 and 20 Jan 04 wrongfully use marijuana • On 6 October 2006 he was discharged from AD with a BCD. • Evidence from DFAS supports two deployments, to Mauritius (March – July 2002) and Afghanistan (November -- December 2003). • He was previously denied relief by the ABCMR in April 2021. c. Review of Available Records Including Medical: All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. A statement provided by applicant references two tours to Afghanistan and one to Iraq. He specified by name a fellow service member he saw die or already deceased, with associated poor coping following his return. Numerous VA medical records are provided for review which include diagnoses of PTSD, depression, anxiety, and adjustment disorder with mixed disturbance of emotions and conduct (e.g., 20 August 2019). Encounter dated 10 December 2018 describes his self-reports of trauma associated with 3 deployments (note, appears inconsistent with other data in ROP and service records regarding his deployment history). He reported multiple potentially traumatic exposures to include engaging enemy forces, seeing bodies burned from bombs, and a fellow service member dying from IED. He indicated after deployment he received a DUI then was caught bringing marijuana in from Canada leading to 18-month incarceration and discharge for “bad conduct.” d. Active-Duty Electronic Medical Record The applicant reviewed available active-duty medical records via the JLV application and HAIMS. There were no relevant encounters or diagnoses associated with his period of service in JLV, and a query of HAIMS returned no documents for applicant. There is evidence of a prescription for a commonly prescribed sleep medication (Ambien) in 2004. e. VA Medical Records Available VA records were reviewed via JLV. Records indicate applicant has no service-connected disabilities (mental health or otherwise) and his treatment records date back to 2006. This review is not exhaustive but references representative encounters. Partial VA records were provided by applicant and are summarized above. Psychiatry Consult of 7 October 2009 indicated no prior psychiatric history; applicant described nightmares 1-2x/month associated with combat experiences to include witnessing friend killed in a bomb blast in front of him, flashbacks, and avoidance behaviors. He was diagnosed with PTSD, alcohol dependence in sustained full remission, and cannabis dependence in sustained full remission. Primary Care Mental Health encounter of 26 September 2018 suggested he had an inpatient admission in the military for PTSD symptoms (no available supporting records located by advisor). Diagnoses at this time included PTSD; anxiety unspecified; depression, moderate; and cannabis use, mild and he was noted to be on an antidepressant medication. Mental Health intake of 30 October 2018 referenced hospitalization while in the military after 3rd deployment due to threatening harm to others, with use of Ambien following discharge. Evaluation resulted in diagnoses of reaction to severe stress; generalized anxiety disorder; and major depressive disorder, recurrent, mild. Provider noted symptoms of PTSD, general anxiety, and depression since being deployed to Iraq and Afghanistan to include witnessing friend “blown up” by IED. PTSD and major depressive disorder, recurrent, severe (in addition to cannabis dependence) were diagnosed on 5 February 2019 at which time he described difficulty maintaining employment due to PTSD and health issues, and he was referred for care in a PTSD outpatient program. PTSD Initial Assessment of 15 April 2019 again referenced a self-reported hospitalization at a military facility after return from 3rd deployment, at which time he was prescribed Ambien; he again noted 1 deployment to Iraq and 2 to Afghanistan. Provider noted he served as a Ranger in the Army for four years with numerous traumatic experiences over three deployments in addition to finding his mother seriously wounded after a suicide attempt when he was 15. He was again diagnosed with PTSD. Note of 25 June 2019 indicated he had been referred to PTSD program on 6 February with severe PTSD and depression and completed an intake over several encounters with one session of therapy; he was then discharged from the program due to lack of contact/follow-up. It appears he was then referred back to the program, but canceled appointment and did not reschedule. In the interim it appears he has engaged in general mental health care, with most recent contact of 14 June 2023 noting diagnoses of PTSD, chronic; major depressive disorder, recurrent, in full remission; insomnia, chronic; alcohol dependence in remission since 2018; and cannabis abuse, in early remission. 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 PTSD associated with the circumstances of his discharge, and records indicate he has been diagnosed with PTSD with associated depression and anxiety symptoms (under various diagnoses to include major depressive disorder and generalized anxiety disorder) by VA providers. (2) Did the condition exist or experience occur during military service? Yes. Although there appears to be some discrepancy in his self-reports of his deployment history and available service records, there is evidence of a combat-related PTSD diagnosis with associated depression and anxiety-spectrum diagnoses. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. Presence of PTSD and associated depression and anxiety (subsumed under diagnosis of PTSD) would mitigate the charge of simple wrongful use of marijuana, as there is a nexus between such conditions and the self-medication of symptoms via substance use to include marijuana. However, PTSD and associated depression and anxiety do not result in the inability to differentiate right from wrong and adhere to the right, and there is no nexus between these conditions and the wrongful importation of over 34 pounds of marijuana and the associated possession with intent to distribute the substance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The applicant's trial by a court-martial was warranted by the gravity of the offense charged (possession, import, and use of illegal drugs). His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The presence of PTSD and associated depression and anxiety (subsumed under diagnosis of PTSD) would mitigate wrongful use of marijuana; however, PTSD and associated depression and anxiety do not result in the inability to differentiate right from wrong and adhere to the right, and there is no nexus between these conditions and the wrongful importation of over 34 pounds of marijuana and the associated possession with intent to distribute the substance. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Dockets Number AR20190011759 on 1 April 2021. 8/15/2023 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of the acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other Than Honorable Conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or in lieu of trial by court martial. d. Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) states 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 the affirmed sentence ordered duly executed. 2. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. 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, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. //NOTHING FOLLOWS//