IN THE CASE OF: 

		BOARD DATE: 15 November 2023

		DOCKET NUMBER: AR20230003655


APPLICANT REQUESTS:  Reconsideration of his previous request for 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)

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 AR20070008931 on 13 December 2007.

2.  The applicant states, at the time of the occurrence he was very young and didn’t 
think much about consequences. He was asked by an Army friend to give a package to 
someone in a car, the friend said he knew him, the person in the car was undercover 
police. The package contained marijuana and the applicant was arrested and taken to a 
special court martial. He was sentenced to 75 days and issued a BCD. Today he is 
much older and realizes that he truly needs his veteran’s benefits. The issue/condition 
related to his request is post-traumatic stress disorder (PTSD).

3.  The applicant enlisted in the Regular Army on 4 December 1984 for three years. His 
military occupational specialty was 12F (Engineer Tracked Vehicle Crewman).

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, of the 
Uniform Code of Military Justice (UCMJ) on 13 January 1986, for the wrongful use of 
marijuana on or about 21 October 1985. His punishment consisted of reduction to 
private/E-1, forfeiture of $319.00 per month for two months, extra duty and restriction 
(suspended).

5.  The applicant’s bar to reenlistment, dated 2 April 1986, shows he had been a 
problem Soldier and a disruptive influence to the discipline and morale of the company. 
He had demonstrated an abuse of illegal drugs. Though he had been counseled 
extensively by his chain of command he had shown no desire to improve his discipline 
or job performance.
6.  Before a special court-martial on or about 2 July 1986 the applicant was found guilty 
of:

*	willfully disobeying a lawful order from a noncommissioned officer (NCO) on or 
about 30 December 1985
*	disrespectful language toward an NCO on or about 30 December 1985 (twice)
*	wrongfully having an alcoholic beverage in his possession while operating a 
motor vehicle under the age of 21 on or about 30 November 1985
*	reckless driving on or about 30 November 1985
*	wrongful distribution of 10.40 grams of marijuana on or about 13 December 1985

7.  The court sentenced the applicant to be discharged from the service with a BCD, 
confinement for 3 months, and forfeiture of $426.00 pay per month for three months. 
The sentence was approved on 24 October 1986 and, except for the BCD, would be 
executed. The record of trial was forwarded for appellate review.

8.  The U.S. Army Court of Military Review affirmed the findings of guilty and the 
sentence was affirmed on 8 May 1987.

9.  Special Court-Martial Order Number 142, dated 10 September 1987, issued by 
Headquarters, U.S. Army Armor Center, Fort Knox, KY, shows the sentence had been 
finally affirmed and ordered the BCD duly executed.

10.  The applicant was discharged on 6 October 1987. His DD Form 214 (Certificate of 
Release from Active Duty) shows he was discharged under the provisions of Army 
Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 3, as a result 
of court-martial, other. He was assigned Separation Code JJD with Reentry Code 3B, 
3D, and 3. His service was characterized as bad conduct, with Special Court-Martial. He 
completed 2 years, 7 months, and 19 days of net active service. He lost time from 2 July 
1986 to 15 September 1986.

11.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, U.S. Code (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.

12.  On 6 June 2007, the applicant was notified that the Army Discharge Review Board 
was not the applicable Board to review his case and that he could request an appeal of 
his discharge by applying to the ABCMR.

13.  On 13 December 2007, the ABCMR determined the evidence presented did not 
demonstrate the existence of a probable error or injustice. Therefore, the Board 
determined that the overall merits of the case were insufficient as a basis for correction 
of the records of the applicant and denied his request.

14.  On 12 February 2019, by letter, the Army Review Boards Agency (ARBA) 
acknowledged receipt of the applicant’s application and assigned a case number. Due 
to the high volume of applications received and the complexity of many cases, it was 
taking between 18 and 24 months for longer before he may receive a decision on his 
application.

15.  On 19 May 2023, an agency staff member, requested the applicant provide medical 
documents that support his issue of PTSD. As of 25 June 2023, no response was 
provided.

16.  In reaching its determination, the Board can consider the applicant’s petition and 
her service record in accordance with the published equity, injustice, or clemency 
determination guidance.   

17.  MEDICAL REVIEW:

    a.  Background: The applicant is requesting reconsideration of his previous request 
for upgrade of his bad conduct discharge (BCD). The applicant asserts PTSD as a 
mitigating factor in 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 into the Regular Army on 4 December 1984. 
*	The applicant accepted nonjudicial punishment (NJP) on 13 January 1986, for 
the wrongful use of marijuana on or about 21 October 1985.
*	The applicant’s bar to reenlistment, dated 2 April 1986, shows he had been a 
problem Soldier and a disruptive influence to the discipline and morale of the 
company. He had demonstrated an abuse of illegal drugs.
*	Before a special court-martial on or about 2 July 1986 the applicant was found 
guilty of: willfully disobeying a lawful order from a noncommissioned officer 
(NCO) on or about 30 December 1985; disrespectful language toward an NCO 
on or about 30 December 1985 (twice); wrongfully having an alcoholic beverage 
in his possession while operating a motor vehicle under the age of 21 on or about 
30 November 1985; reckless driving on or about 30 November 1985; and 
wrongful distribution of 10.40 grams of marijuana on or about 13 December 
1985. 
*	The applicant was discharged on 6 October 1987, under AR 635-200, Chapter 3, 
as a result of court-martial, other. His service was characterized as bad conduct, 
with Special Court-Martial. 
*	ABCMR denied his request for upgrade on 13 December 2007.

    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, his 
ABCMR Record of Proceedings (ROP), DD Form 214, as well as his separation and 
service records. 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. 
The applicant asserts PTSD is a mitigating factor in his discharge. He stated in his 
application that he was arrested and charged after a friend asked him to hand a 
package off to someone he knew, and when he did so it was an undercover police 
officer. The package contained marijuana and the applicant was arrested. 
    d.  The applicant’s time in service predates use of electronic health records (EHR) by 
the Army, hence no EHRs are available for review. His service record and supporting 
documents did not contain his service treatment records (STR). No records were 
provided by the applicant to substantiate his assertion. There is no record the applicant 
was ever diagnosed or treated for PTSD, nor any other mental health concern while in 
the service. 
    e.  Per the applicant’s VA EHR, he is not service connected, though given the 
characterization of his discharge, he would not typically be eligible for most VA benefits. 
The applicant was engaged with mental health care through the VA for one assessment 
in 2008, and then from July 2021 to January of 2023. He has primarily engaged with 
housing/homeless programs (healthcare for homeless veterans, grant per diem). He 
has been diagnosed with alcohol dependence, cocaine dependence, and anxiety, as 
well as other psychosocial concerns such as homelessness, legal problems, problems 
related to housing and economic circumstance, sheltered homelessness and 
unsheltered homelessness. Through review of JLV, this applicant did have “Community 
Health Summaries and Documents” available, though there was no record of a mental 
health diagnoses, nor mental health encounters. No other medical records were 
provided.
    f.  Based on the available information, it is the opinion of the Agency Behavioral 
Health Advisor that there is insufficient evidence the applicant had a mitigating condition 
or experiences during his time in service. In addition, a portion of his misconduct would 
not typically be mitigatable due to the severity or seriousness of the offense. 
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 as a mitigating 
factor. 
    (2)  Did the condition exist or experience occur during military service? Unknown, the 
applicant did not specify when he experienced PTSD. 

    (3)  Does the condition or experience actually excuse or mitigate the discharge? No. 
The applicant asserts PTSD as a mitigating factor in his misconduct and discharge, 
however no details were given pertaining to this assertion. In addition, there is no 
evidence that the applicant was experiencing a mitigating condition on active service, 
nor is there any evidence that supports he has ever been diagnosed or service 
connected with any mitigating mental health condition since his discharge. Of note, 
there is a nexus between self-medication and avoidance through substance use as well 
as increased irritability and difficulty with authority figures, and PTSD. However, there is 
no nexus between PTSD and distribution/selling of substances, as these behaviors are 
not part of the natural history and sequalae of the asserted diagnosis. Hence, mitigation 
due to a mental health condition is not supported. 

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 insufficient evidence the applicant had a 
mitigating condition or experiences during his time in service. In addition, a portion of his 
misconduct would not typically be mitigatable due to the severity or seriousness of the 
offense. The Board agreed, the record is absent any evidence the applicant was 
experiencing behavioral health conditions while on active duty. 

2.  The Board noted the opine, that a nexus between self-medication and avoidance 
through substance use as well as increased irritability and difficulty with authority 
figures, and PTSD. However, there is no nexus between PTSD and distribution/selling 
of substances, as these behaviors are not part of the natural history and sequalae of the 
asserted diagnosis. Further, based on the preponderance of evidence, the Board found 
insufficient evidence of in-service mitigating factors to overcome the misconduct. The 
applicant no provided post-service accomplishments or character letters of support to 
attest to his honorable conduct for the Board to weigh a clemency determination. The 
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. The 
Board agreed that amending the previous Board decision is without merit and therefore, 
relief is denied. 


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 Board found 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 Docket 
Number AR20070008931 on 13 December 2007.


	 
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 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.

2.  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 provided that an enlisted person 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.

3.  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.

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 Service 
Discharge Review Boards (DRB) and Service 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 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. 

5.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to 
Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230003655


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1