IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004058 APPLICANT REQUESTS: an upgrade of his characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 12 January 2023 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 very young, mischaracterized by his superiors, away from home for the first time, and ostracized constantly. This caused him to become a heavy drinker and very mentally unstable. 3. On his DD Form 149, the applicant notes other mental health is related to his request. 4. The applicant enlisted in the Regular Army on 10 April 1979, for a period of 3 years. 5. A DA Form 2-1 (Personnel Qualification Record) shows the highest rank/grade he obtained was private 2 (PV2)/E-2, with a date of rank of 10 October 1979. 6. Two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), show the applicant accepted nonjudicial punishment for the following: a. On or about 12 December 1979, he was disrespectful in language toward his superior, a noncommissioned officer, and he was incapacitated for his proper performance of duty due to his previous indulgence in intoxicating liquor. The punishment imposed was reduction to the grade of E-1, forfeiture of $107.00 per month for one month, 14 days extra duty and 14 days of restriction. b. On or about 11 February 1980, he wrongfully communicated to his superior noncommissioned officer and superior commissioned officer, and he was incapacitated for his proper performance of duty due to his previous indulgence in intoxicating liquor. The punishment imposed was reduction to the grade of E-1, forfeiture of $228.00 per month for two months, restriction and extra duty for 45 days. 7. The Special Court-Martial Order Number 52, issued by Headquarters, 2nd Infantry Division, dated 5 June 1980, shows the following: a. On 14 April 1980, the applicant was arraigned and tried for violation of the Uniform Code of Military Justice (UCMJ) Article 91 for the following: Specification 1: in that the applicant, did on or about 15 March 1980, assault his superior noncommissioned officer, who was then in the execution of his office by striking at him with his hands and by striking at him with a shovel. Specification 2: in that the applicant, did on or about 15 March 1980, receive and willfully disobey a lawful order from his superior noncommissioned officer. b. He was found guilty on both specifications and the charge. c. The military judge sentenced him to forfeiture of $298.00 per month for six months, confinement at hard labor for three months, and a discharge from the military service with a bad conduct discharge. d. The sentence was adjudged on 15 May 1980 and approved on 5 June 1980. e. The applicant's sentence was modified to a bad conduct discharge, confinement at hard labor for three months and forfeiture of $298.00 pay per month for four months. 8. The record of trial was forwarded for appellate review, the findings of guilty and sentence were affirmed on 24 July 1980. 9. On 27 August 1980, he acknowledged receipt of the decision of the U.S. Army Court of Military Review and was advised of his right to petition the court for a grant of review with respect to any matter of law, within 30 days. 10. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), shows on 10 September 1980, the applicant received nonjudicial punishment under Article 15 of the UCMJ, for willfully disobeying a lawful order from his superior noncommissioned officer and wrongfully communicated a threat to his superior noncommissioned officer. 11. Special Court-Martial Order Number 107, dated 7 November 1980, ordered the bad conduct discharge to be duly executed. 12. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 20 November 1980, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 11, by reason of court-martial, in the grade of E-1. He received a bad conduct characterization of service. His DD Form 214 also shows in: * item 12c (net active service this period) – 1 year, 4 months, and 26 days * item 26 (separation code) – JJD * item 27 (reentry code) – 3; 3B * item 29 (dates of time lost during this period) – 15 May 1980 through 29 July 1980 13. There is no indication the applicant applied to the Army Discharge Review Board for request of discharge upgrade within that Board's 15-year statute of limitations 14. 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. 15. 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. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his bad conduct discharge. He contends he had mental health conditions that mitigated his misconduct. 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: 1) The applicant was enlisted in the Regular Army on 10 April 1979; 2) The applicant accepted nonjudicial punishment for the following: A) On 12 December 1979, he was disrespectful toward an NCO and was intoxicated on duty and B) On 11 February 1980, he wrongfully communicated to his NCO and commissioned officer and was intoxicated on duty; 3) During special court martial hearing on 14 April 1980, the applicant was found guilty of assaulting an NCO with his hand and by striking at him with a shovel; 4) The applicant was discharged on 20 November 1980, Chapter 11, by reason of court- martial, in the grade of E-1. He received a bad conduct characterization of service. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided for review. d. The applicant noted mental health conditions as a contributing and mitigating factor in the circumstances that resulted in his separation. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of any behavioral health documentation, and the applicant receives no service- connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing mental health conditions that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing a mental health condition while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. The applicant did engage in some erratic behavior and misconduct related to excessive alcohol consumption, but this is not sufficient to establish a history of a condition during active service. In addition, there is no nexus between the applicant’s report of a mental health condition and assault of his NCO. However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. 2. The Board found the applicant’s records exhibited numerous patterns of misconduct and his egregious misconduct could not mitigated. It was noted by the Board, 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 determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically clemency with an upgrade of his current characterization of service. Therefore, the Board denied relief. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINISTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 20 November 1980. As a result, amend his DD Form 214 by adding Korea Defense Service Medal. 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. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 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. AR 635-200, in effect at the time, provides for the orderly administrative separation of Soldiers in a variety of circumstances. a. Chapter 11 (Dishonorable and Bad Conduct Discharge) states a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been 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. 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 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; 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. 6. 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, BCM/NRs 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) AR20230004058 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1