ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
Record of Proceedings 
IN THE CASE OF:  
BOARD DATE: 1 December 2021 DOCKET NUMBER: AR20190013989 
APPLICANT REQUESTS: reconsideration of his previous request to upgrade his discharge from a bad conduct to a general under honorable conditions. 
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), 12 August 2019 
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 AR2003089503, on 23 October 2003. 

2. 
The applicant states: 


a. 
He enlisted to escape from B___ in Vermont (VT). He spent most of his childhood being molested and "in record the department of corrections (DOC) in Waterbury, VT." He had post-traumatic stress disorder (PTSD) at that time but no one recognized. 

b. 
He spent 30 years in prison in VT. His prison records has Doctor L____ as his psychologist. His records at DOC show he has PTSD as a child due to sexual abuse. He has lived over 20 years in society as a healthy man after many years of sex offender and violent offender treatment in prison. 

c. 
The military should have seen this during his incarceration at Fort D____, Fort D____, and L____ KS. He has four books published and sold on Amazon. The book B____ C____ is about his life. Changing his discharge would complete his life. He joined the Army to not run; he had PTSD. He would like to shop at the Post Exchange and have medical benefits. 


3. Review of the applicant's service records shows: 
a. On 21 November 1968, he underwent a medical examination for the purpose of enlistment in the Army. He was initially found to be unqualified for enlistment due to acne on his back and shoulder and because he was fourteen pounds’ overweight. He requested a waiver of his weight condition and on 23 December 1968, he was granted a waiver for enlistment in the Army. He was accepted for military service under project 100,000, being overweight. 
b. 
On 23 December 1968, he enlisted in the Regular Army at age 17, with parental consent. 

c. 
The applicant was still in basic combat training when he absented himself without leave (AWOL) on 17 January 1969. He remained absent until he returned to military control on 20 January 1969. 

d. 
He went AWOL again on 27 January 1969 and he remained absent until he returned to military control on 13 May 1969. 

e. 
The applicant went AWOL a third time on 26 May 1969 and he was dropped from the rolls as a deserter on 1 September 1969. 

f. 
On 3 March 1973, the applicant was apprehended by civil authorities, and charged with two counts of assault with a dangerous weapon and one count of defacing property. [Applicant] was returned to military control on 3 March 1973 and he was placed in pretrial confinement 


4. 
On 8 May 1973, the applicant was convicted pursuant to his pleas by a general court-martial of three specifications of being AWOL from 17 to 20 January 1969, 27 January to 13 May 1969, and 26 May 1969 to 3 March 1973. The court sentenced him to confinement at hard labor for 6 months and a bad conduct discharge. 

5. 
On 5 June 1973, the convening authority approved the sentence as adjudged. However, on 6 August 1973, the unexecuted portion of the sentence to confinement was remitted as modified by the action of The Judge Advocate General and he was restored to duty pending completion of appellate review. 

6. 
On 9 August 1974, The Judge Advocate General affirmed the findings and the sentence as approved by the convening authority. Accordingly, on 9 January 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11 as a result of a duly reviewed and affirmed general court-martial conviction. He had completed 1 years, 5 month and 22 days of total active service and he was furnished a BCD. 

7. 
On 16 January 1976, the applicant's Report of Separation was corrected to reflect he was issued a Clemency Discharge pursuant to Presidential Proclamation Number 4313. 

8. 
On 23 October 2003, the Board denied his request for an upgrade of his discharge and stated: 


a. 
The applicant was properly discharged pursuant to a sentence by a general court-martial conviction with no indication of any violations of any of his rights. 

b. 
Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 

c. 
The Board has noted the applicant's contentions. However, he enlisted in the Army at age 17 with parental consent and he requested a waiver of his disqualifications and it was granted. He failed to complete his basic training because he began to go AWOL 24 days after he enlisted in the Army. The charges against him were too serious and his record of service is too undistinguished to warrant relief in his case. 


9. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation states, in pertinent part, that a member will be given a bad conduct discharge 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. 

10. 
Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records 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 modify the severity of the punishment imposed. 

11. 
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. 

12. 
MEDICAL REVIEW: 


The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to PTSD that worsened while on active duty. 
a. The Agency psychologist was asked by the ABCMR to review this request. 
Documentation reviewed includes the applicant’s completed DD149 and supporting 
documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records or civilian medical documentation was provided for review. 
b. 
Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 23 Dec 1968. During his service, he was awarded the National Defense Service Medal. A Federal Bureau of Investigation report, dated 05 Mar 1973 noted, “subject was apprehended 3/3/73 by his department and charged w/2 counts assault with Dangerous Weapon and 1 count Defacing Property.” A Factual Data for Restoration Clemency and Parole Review, dated 08 May 1973 indicated three episodes of being absent without leave (AWOL) from 17-20 Jan 1969, 27 Jan 1969 -13 May 1969, and 26 May 1969 -03 May 1973. A General Court Marital Order, dated 09 Aug 1974, noted that he would receive a bad conduct discharge and “confinement hard labor for six months.” A General Court-Martial document, dated 05 Jun 1978, identified three main AWOL periods (noted above) as being the offenses leading to the court-martial. He received an Under Other Than Honorable Conditions discharge on 09 Jan 1975 with authority and reason, Para 11-2, AR 635-200, SPD JJD, see 27. A subsequent Correction to DD 214, dated 16 Jan 1976 indicated, “Clemency Discharge Issued Pursuant to Presidential Proclamation.” 

c. 
The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There was no available data for medical or behavioral health notes, as well as no data on the problem list. 

d. 
Based on the information in the applicant’s medical record, it is the opinion of the Agency psychologist that there are no mitigating Behavioral Health conditions. Problems arising from PTSD often contribute to self-isolation, anger outbursts, aggressive behavior, intrusive memories, nightmares, interpersonal difficulties, poor sleep and self-medication with drugs/alcohol. Assaults with life threatening weapons and property defacement are not part of the natural history or sequelae of PTSD, or other behavioral health conditions, and, as such, are not mitigated under Liberal Consideration. A discharge upgrade is therefore not recommended. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, 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 no mitigating Behavioral Health conditions. Furthermore, assaults with life threatening weapons and property defacement are not part of the natural history or sequelae of PTSD, or other behavioral health conditions, and, as such, are not mitigated under Liberal Consideration. Based on this, and by a preponderance of evidence, the Board agreed that reversal on the previous determination is not warranted. Therefore, relief was denied. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
XX XXX XX 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 AR2003089503, on 23 October 2003. 
X 
CHAIRPERSON 
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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 11 provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or SPCM after completion of the appellate review and after such affirmed sentence has been ordered duly executed. 
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. 
2. 
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. 

3. 
 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. 

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 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. 

5. 
 On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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. 

6. 
 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. 


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