IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230004150 APPLICANT REQUESTS: Upgrade of his dishonorable discharge to under honorable conditions (general) or honorable. Additionally, he 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) 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 he suffered through a lot of post-traumatic stress disorder (PTSD) and didn’t get the help that he needed. He is a highly decorated war Veteran, and he respectively asks the Board to consider that time has passed. He let his country down by not requesting help for PTSD. He doesn’t use drugs anymore and would like a second chance. 3. On his DD Form 149, the applicant notes that PTSD is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. The applicant enlisted in Army National Guard (ARNG) and entered initial active duty for training on 30 September 1985. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service. [see Administrative Note]. 5. Having previous service in the ARNG, the applicant enlisted in the Regular Army, on 6 April 1989 for 4 years. 6. He served in Southwest Asia from 4 January 1991 until 18 May 1991. 7. The applicant was honorably discharged on 30 January 1992. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8, for the convenience of the government: fiscal year 1992 Early Transition Program. His service was characterized as honorable. He completed 2 years, 9 months, and 25 days of net active service this period. 8. Having previous service in the ARNG and the Regular Army, the applicant enlisted in the Georgia ARNG, on 30 January 1992. 9. The applicant was honorably discharged from the Georgia ARNG, on 10 August 1992 and assigned to the U.S. Army Reserve Control Group. 10. Having previous service in the ARNG and the Regular Army, the applicant again enlisted in the Regular Army, on 8 October 1992. 11. On 17 March 1993, the applicant was reported as absent without leave (AWOL) and remained absent until he was apprehended by military authorities on 1 July 1993. 12. Before a general court-martial on 1 October 1993, at Fort Hood, TX, the applicant was found guilty of one specification of attempting to steal military property of a value of about $1,471.00; one specification of going AWOL with the intent to remain away permanently; two specifications of wrongful use of cocaine and marijuana; and 19 specifications of larceny of military property (U.S. currency) of value between about $1,100.00 and $1,720.00. 13. The court sentenced the applicant to a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 55 months. The sentence was approved on 20 December 1993, however, only so much of the sentence as provided for confinement for three years and six months (forty-two months), reduction to the grade of E-1, forfeiture of all pay and allowances, and a dishonorable discharge was approved, and except for the part of the sentence extending to a dishonorable discharge, will be executed. The record of trial was forwarded for appellate review. 14. The U.S. Army Court of Military Review affirmed the findings of guilt and the sentence 7 March 1994. 15. On 12 August 1994, the U.S. Court of Military Appeals denied the applicant’s petition for a review of the decision of the U.S. Army Court of Military Review. 16. General Court-Martial Order Number 286, issued by U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS on 27 September 1994, noted that the applicant's sentence had been affirmed and ordered the dishonorable discharge to be duly executed. 17. The applicant was discharged on 21 October 1994. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 3-10, as a result of court-martial. His service was characterized as dishonorable. He was assigned Separation Code JJD and Reentry Code 4. He was credited with 5 months, and 8 days of net active service this period with 585 days of lost time. He had 3 years, 1 month, and 8 days of total prior active service. He was awarded or authorized the: * Good Conduct Medal * National Defense Service Medal * Army Achievement Medal * Army Commendation Medal * Southwest Asia Service Medal with 3 Bronze Stars * Saudi Arabia/Kuwait Liberation Medal * Noncommissioned Officers Professional Development Ribbon (level 1) * Army Service Ribbon * Overseas Service Ribbon * Combat Infantryman Badge 18. On 19 May 2023, the ABCMR staff requested the applicant provide medical documents to support his PTSD and other mental health issues. He was advised that he could contact the doctor that diagnosed him or his Veterans Affairs regional office for assistance. He did not respond. 19. 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. 20. 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. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requests an upgrade of his dishonorable discharge to under honorable conditions (general) or honorable. He asserts he was experiencing PTSD during his active service, which contributed to 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 had previously served in the ARNG and then enlisted in the Regular Army on 6 April 1989; 2) He served in Southwest Asia from 4 January-18 May 1991; 3) Before a general court-martial on 1 October 1993, the applicant was found guilty of one specification of attempting to steal military property of a value of about $1,471.00; one specification of going AWOL with the intent to remain away permanently; two specifications of wrongful use of cocaine and marijuana; and 19 specifications of larceny of military property (U.S. currency) of value between about $1,100.00 and $1,720.00; 4) The applicant was discharged on 21 October 1994, by reason of court- martial. His characterization of service was dishonorable. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided by the applicant. d. The applicant noted PTSD as contributing and mitigating factor in the circumstances that resulted in his separation. There is insufficient evidence the applicant reported mental health symptoms while on active service. A review of JLV provided evidence the applicant been diagnosed with service-connected PTSD since January 2023. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. 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 contends he was experiencing PTSD that contributed to his misconduct, and he has been diagnosed with service- connected PTSD and migraines since January 2023. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing PTSD that contributed to his misconduct, and he has been diagnosed with service-connected PTSD January since 2023. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial, there is sufficient evidence the applicant was experiencing PTSD while on active service. Avoidant behavior such as drug use and going AWOL are natural sequalae to the negative symptoms associated with PTSD. However, there is no nexus between PTSD and the applicant’s misconduct of multiple counts of larceny: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing PTSD 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 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 considered the advising official findings that there is partially sufficient evidence the applicant was experiencing PTSD while on active service. Avoidant behavior such as drug use and going AWOL are natural sequalae to the negative symptoms associated with PTSD. 2. The Board determined there is insufficient evidence the applicant reported mental health symptoms while on active service. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support to attest to his honorable conduct that might have mitigated the discharge characterization. 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. The Board found no error or injustice based on the preponderance of evidence. Further, the Board concurred with opine that there is no nexus between PTSD and the applicant’s misconduct of multiple counts of larceny: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. The Board found under liberal consideration, the applicant’s serious pattern of misconduct and his ability to know right from wrong, mitigation of clemency is without merit. 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 is completed to more accurately depict the military service of the applicant. 4. 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: 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 NOTE(S): The applicant completed a period of initial active duty for training (IADT). He was awarded a military occupational specialty at the completion of training and was transferred back to the Army National Guard. Army Regulation 635-200 provides that when a Reserve Component Soldier successfully completes IADT, the characterization of service is Honorable unless directed otherwise by the separation authority. Please reissue him a DD Form 214 for the period ending 17 January 1986, showing his character of service as Honorable. 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, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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, Section IV provided that a member would 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. 5. 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. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. 7. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. 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. 8. 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) AR20230004150 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1