IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230002813 APPLICANT’S REQUEST: * upgrade of his bad conduct discharge (BCD) * the narrative reason for his separation be changed from "Court-Martial Other" to an unspecified, presumably more preferable reason APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * General Court-Martial Order Number 24, dated 27 October 1993 * DD Form 214 (Certificate or Release or Discharge from Active Duty) for the period ending 20 September 1994 * An article entitled "Presumptive conditions for Gulf War Veterans" (2 pages) * An extract from his medical records (28 pages) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 was wrong, and his actions can in no way be justified. He inflicted harm that can never be undone, and for that he is truly sorry. Before the incident, he served honorably in the States and in the Gulf War region. As a result, he received the Army Service Ribbon (ASR), National Defense Service Medal (NDSM), Army Good Conduct Medal (AGCM), Kuwait Liberation Medal (KLM), and an Army Achievement Medal (AAM). He suffered and is currently suffering from medical conditions directly related to his service in the Gulf War region. This was recently brought to his attention, and a change in his discharge status will allow him to receive the medical services he needs. 3. The applicant's service record is "checked out" and is not available for review. Therefore, this case is being considered based upon the documents provided by the applicant. 4. The applicant's DD Form 214 shows he enlisted in the Regular Army on 16 October 1989. Upon completion of initial entry training, he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic). He was credited with 1 year, 2 months, and 16 days of foreign service. During his period of service, he was awarded or authorized the: ASR, NDSM, AGCM, Army Commendation Medal, Southwest Asia Service Medal with three bronze service stars, Kuwait Liberation Medal, Drivers and Mechanic Badge with Wheeled Driver and Wheeled Component Bars, AAM, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar, and Expert Marksmanship Qualification Badge with Hand Grenade Bar. 5. General Court-Martial (GCM) Order Number 24 issued by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Fort Riley, KS on 27 October 1993 shows the applicant was arraigned before a GCM empowered to adjudge a BCD. a. The applicant was found guilty of the following offenses in violation of the Uniform Code of Military Justice (UCMJ): * one specification of violating a lawful general regulation by possessing a loaded weapon in a vehicle on or about 31 May 1993 * one specification of carrying a concealed weapon on or about 31 May 1992 * one specification of assault with a dangerous weapon, a loaded firearm, on or about 31 May 1993 b. His sentence consisted of reduction from the rank/grade of specialist/E-4 to private/E-1; confinement for 8 months; and to be discharged from service with a BCD. The sentence was adjudged on 13 August 1993. 6. The applicant's DD Form 214 shows he was discharged from the Regular Army on 20 September 1994, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. His service was characterized as bad conduct. He was credited with completion of 4 years, 7 months, and 9 days of net active service. He had lost time due to confinement from 13 August 1993 until 9 December 1993. 7. In support of his petition, the applicant provides the following: a. An article entitled "Presumptive conditions for Gulf War Veterans" which establishes the criteria that eliminates the need for Gulf War Veterans to prove a connection between their military service and illnesses in order to receive Veterans Affairs (VA) disability compensation. The VA presumes certain chronic, unexplained symptoms existing for six months or more are related to Gulf War service without regard to cause and provides a list of the conditions. b. An extract from his medical records maintained by the which show his history of treatment for a variety of medical conditions since June 2019. 8. 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. 9. The ABCMR does not grant relief solely for the purpose of making an individual eligible for benefits. 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. 10. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 20 September 1994 bad conduct discharge and a change in his reason for separation. He states: “I was wrong and my actions can in no way be justified. I inflicted harm that can never be undone, and for that I am trufully sorry. Before the incident, I served honorably, in the States and over in the Gulf war region receiving the following ribbons and medals … I have suffered and am currently suffering from medical conditions directly related to my service in the gulf war region, this was brought to my attention recently, and the change in my status will allow me to receive the medical services available.” c. The Record of Proceedings detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the Regular Army on 16 October 1989 and was discharged on 20 September 1994 under the separation authority provided by Section IV chapter 3 of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990): Dishonorable and Bad Conduct Discharge. The separation code JJD denotes “Court Martial (Other).” d. General Court-Martial Order number 25, dated 27 October 1993, shows the applicant was found guilty of having committed multiple crimes, including “assault with a dangerous weapon, a loaded firearm.” e. Submitted medical documentation includes multiple outpatient clinic encounters form 2019 - 2022. They reveal that thought the applicant has been diagnosed with multiple medical conditions, none of them are mental health related. f. There are no encounters or diagnoses in JLV. g. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations. h. It is the opinion of the ARBA medical advisor that a discharge upgrade based upon a mitigating medical condition is unwarranted. 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 to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim regarding his health and the review and conclusions of the ARBA Medical 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 any medical conditions. Based on a preponderance of the 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, USC, 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. Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, 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. 3. 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. 4. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 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, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under other than honorable conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) 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. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A BCD will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 6. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder (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. 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. 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) AR20230002813 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1