IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20230002554 APPLICANT REQUESTS: an upgrade of his characterization of service from bad conduct to honorable. He also 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), 7 December 2020 * Mental Disorders (other than post-traumatic stress disorder (PTSD)) – DSM V Disability Benefits Questionnaire, 21 January 2020 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 2010 upon returning from Afghanistan, he was diagnosed with post-traumatic stress disorder (PTSD) and sent to a mental facility. He was told by his command to not mention his PTSD while in the Army or he will be removed, and the PTSD would affect his career. After leaving the mental hospital he did not report his PTSD due to fear of being discharged. In 2013, while stationed in Germany he was charged with possession of marijuana with intent to distribute and he was incarcerated and discharged. 3. On 15 November 2007, the applicant enlisted in the Regular Army. He completed training and was awarded the military occupational specialty (MOS) 91D (Power Generation Equipment). 4. He served in Afghanistan from 10 March 2009 to 6 March 2010. 5. On 25 October 2009, the applicant reenlisted and on 26 July 2010, he was transferred to Germany. 6. A DD Form 2707 (Confinement Order), 25 April 2014, shows the applicant was confined as a result of a general court-martial for Article 107 – False Official Statements and Article 112a – Drugs: Possession with intent to distribute marijuana. 7. On 10 September 2014, the applicant’s duty status changed from confined by military authorities to present for duty. 8. General Court-Martial Order Number 4, issued by Headquarters, 21st Theater Sustainment Command, shows a General Court-Martial convened on 25 April 2014. a. The applicant was arraigned, tried, and convicted of the following charges – (1) Charge I, Article 112a, Specification: in that the applicant did, on or about 19 March 2013, at or near Giessen, Germany, wrongfully possess about 20 pounds of hashish, with the intent to distribute. (2) Charge II. Article 107, Specification: in that the applicant did, on or about 19 March 2013, at or near Baumholder, Germany, with intent to deceive make to Staff Sergeant an official statement to wit: “my wife has complications with her pregnancy and need me to take her to the hospital” or words to that effect, which statement was totally false, and was then known by the said [applicant] to be so false. b. The court sentenced him to reduction to grade of private E-1, to forfeit all pay and allowances, confinement for six months, and a dishonorable discharge. c. The sentence was adjudged on 25 April 2014. d. On 12 February 2015, the convening authority approved only so much of the sentence as provides for reduction to the grade of private, forfeiture of all pay and allowances, confinement for six months, and a bad-conduct discharge (BCD) and, except for that part of the sentence extending to a BCD, the sentence will be executed but the execution part of the sentence extending to forfeiture of all pay and allowances is suspended for a period of six months at which time unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. The automatic forfeitures were deferred effective 6 May 2014 and terminated on this date. The automatic forfeiture of pay and allowances, required by Article 58b, UCMJ, is waived effective this date for a period of six months for the benefit of the accused’s dependents. 9. The General Court-Martial Order that ordered the bad conduct discharge executed is not available for review. However, on 21 June 2016, Headquarters, U.S. Army Garrison, Fort Sil, OK published Orders 173-1315 ordering the applicant’s discharge effective 30 June 2016. 10. The applicant was discharged from active duty on 30 June 2016. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as the result of court-martial, other, with the issuance of a Dishonorable Discharge Certificate. a. He completed 8 years, 3 months, and 1 day of net active service this period. b. He was awarded or authorized the Afghanistan Campaign Medal with two bronze service stars, Army Commendation Medal (2nd Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, North Atlantic Treaty Organization Medal, Parachutist Badge, and the Certificate of Achievement (2nd Award). c. Lost time during this period under 10 U.S.C. 972: 20140425-20140909. d. He received a separation code of "JJD" and a Reentry Code of "4." 10. The applicant provides a Mental Disorders (other than post-traumatic stress disorder (PTSD)) – DSM V Disability Benefits Questionnaire, 21 January 2020 – which shows in part – a. Major Depressive Disorder, and [applicant’s] medical records support that any currently diagnosed PTSD and insomnia disorder are at least likely as not incurred in or caused by the insomnia during service in theater facility, on 20 October 2009, noted as combat stress control psychotherapy. [Applicant’s] symptoms include stress, anxiety, depressed mood, loss of energy, poor concentration, low interest, decreased sleep. [Applicant] diagnosed with adjustment disorder with disturbance of emotions and conduct, and adjustment insomnia on 26 March 2010 at 673rd Medical Group, Mental Health Clinic, written by on 27 March 2010. b. While being assessed and while relating to other personnel [applicant] voiced homicidal ideations and a "I could hurt them"; [applicant] was referred to the CRC;"- "...he arrived at AOR (April 2009) he perceived his superiors to be "messing with him" regrading some training and his certificates; as his deployment progressed he felt "singled out" and being “messed up with" and forced to take actions that were not beneficial to him (take medications that could affect his liver, told to clear toilets, and eventually asked to pay for a lost item (missing in the inventory). c. [Applicant] was able to assert himself, with some success but created more tension for one superior in specific; these frictions have continued and built up. [Applicant] has voiced desire to be moved to another section/unit; while requesting such transfer he verbalized statements that have being interpreted as "homicidal ideations- possible plan; unclear about intent; [applicant] agreed to a voluntary admission to the CRC;"-"...Adjustment Disorder with Disturbance of Emotions and Conduct; no data to support Bipolar or Psychosis; veteran's mood has being variable as the deployment experienced has not been satisfying; on the contrary has been colored by impaired/mal- adaptive interactions with superiors; for now will offer sleep enhancing medication ..."- 17 March 2010 at 673rd Medical Group, FR-Virtual Behavioral Health - Note Written by on 18 March 2010. d. 1 March 2010 at 673rd Medical Group, FR-Multi-D Behavioral Health - Primary Diagnosis: Acute Stress Disorder. Reason for appointment: Hospitalized at providence "Active Homicidal Idea with plan and intent.” Named targets are his immediate chain of command including company commander and first sergeant."-"...and track the Soldier into our PTSD treatment program."08 March 2010 at 673rd Medical Group, FR-SRP Behavioral Health "SM reports he has been plagued by thoughts of hurting people in his chain of command as well as himself. He reports he was seen in the field and is having frequent nightmares. He is not happy. He reports he wanted to kill one of his platoon sergeants because he is stressing him for no reason. 11. The applicant’s record is void of a separation medical examination. 12. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a special or a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 13. 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. 14. MEDICAL REVIEW: a. The applicant is requesting a reconsideration of his previous request for upgrade of his characterization of service from Dishonorable Discharge to Honorable Discharge. The applicant contends his behavior was mitigated by PTSD. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 15 November 2007. * He served in Afghanistan from 10 March 2009 to 6 March 2010. * General Court-Martial convened on 25 April 2014 and the applicant was confined; The applicant was arraigned, tried, and convicted of the following charges –Article 107 – False Official Statements and Article 112a – Drugs: Possession with intent to distribute marijuana. * The applicant was discharged on 30 June 2016, under the provisions of AR 635- 200, CH 3, as the result of court-martial, other, with the issuance of a Dishonorable Discharge Certificate. * The applicant attested that he completed a DD Form 149 and submitted it to the board in 2015 “but it was denied based on prejudice and without review.” b. 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), his separation military documentation, and all other supporting documents. The VA electronic medical record and DoD health record available for review through Joint Longitudinal View (JLV) were also reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. c. The applicant asserts that PTSD stemming from his deployment in Afghanistan mitigates his bad conduct. Per the applicant’s assertion, as well as medical records, he was diagnosed with several mental health concerns, to include PTSD, though this diagnosis was associated with trauma from his childhood. However, he completed a behavioral health evaluation for a risk assessment 21 MAR 2013, shortly after release from a German jail/ and was NOT diagnosed with any mental health condition. At the time of evaluation, he denied any PTSD symptoms; this was two days after the arrest for possession with intent to distribute. Only one C&P/DBQ was provided for review, and it diagnosed the applicant with MDD, though his VA records report 100 percent service connection for PTSD. Hence, a preponderance of the evidence suggests the condition existed during military service, however his records indicate he was not experiencing PTSD symptoms around the time of his bad conduct. d. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support that the applicant has been diagnosed with PTSD, and it was present during his time in service, however there is insufficient evidence to support the applicant had a condition or experience that mitigated his bad conduct. 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 has a history of being diagnosed with mental health conditions, to include PTSD. 2. Did the condition exist or experience occur during military service? Yes. The applicant reported experiencing PTSD while on active service, and has received VA service connection, 100 percent for PTSD. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD at the time of offense/discharge. This assertion alone is worthy of consideration by the Board. Applicant held a diagnosis of PTSD from childhood trauma (diagnosed while in the service) and has since been service-connected 100 percent for PTSD. However, there is no nexus between his reported mental health conditions and giving a false official statement, or drug possession with intent to distribute, given that: 1) this misconduct is not part of the natural history or sequelae of his reported mental health conditions; 2) they do not affect one’s ability to distinguish right from wrong and act in accordance with the right. As suggested in the Kurta memo, the premeditated bad conduct outweighs relief offered under Liberal Consideration guidance. 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 the medical advisory the Board concurred with the advising official finding there is sufficient evidence to support that the applicant has been diagnosed with PTSD, and it was present during his time in service, however there is insufficient evidence to support the applicant had a condition or experience that mitigated his bad conduct. Furthermore, it was determined there is no nexus between his reported mental health conditions and giving a false official statement, or drug possession with intent to distribute, given that: 1) this misconduct is not part of the natural history or sequelae of his reported mental health conditions; 2) they do not affect one’s ability to distinguish right from wrong and act in accordance with the right. 2. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant no provided post-service achievements or character letters of support to weigh 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. Therefore, the Board denied relief. 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 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. b. 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. c. 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. 3. 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. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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; TBI; sexual assault; sexual harassment. Boards were directed 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military BCM/NRs and DRBs 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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. 7. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows 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) AR20230002554 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1