IN THE CASE OF: BOARD DATE: 1 March 2021 DOCKET NUMBER: AR20200001603 APPLICANT REQUESTS: an upgrade of his dishonorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 21 November 2019, with a self- authored statement dated 11 November 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 April 2010 * Support Letter, dated 29 August 2019 * The American Legion, magazine article excerpt, dated August 2019 FACTS: 1. The applicant did not file within the three 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, in effect: a. He is petitioning for an upgrade of is dishonorable discharge. He spent 14 years in confinement resulting from a military court-martial; he is currently on federal parole. He joined the Army in October 2003 and completing initial entry training on 2 January 2004. Six weeks after arriving to Baumholder, Germany, he deployed to Iraq with 1st Battalion, 6th Infantry Regiment, 2nd Brigade, 1st Armored Division; he served honorably with this unit. He returned to Baumholder on 2 July 2004. During this time, he gained two ranks and served as a team and squad leader for his platoon. He was awarded the Combat Infantryman Badge (CIB) and was allowed to wear it until after his court-martial in February 2006. He doesn’t understand why this award was removed from his records. b. He experienced uncommon things in Iraq for a front line combat infantryman. There is a National Geographic documentary about his unit called "The Long Road Home," which documented the events on 4 April 2004, when his unit had to go in and save cavalry troops who were pinned down in x. He remembers that day very well, the whole country went to war with them, following Muktada al-Sadr's orders to kill all Americans. His senior leaders compared this to the Tet Offensive. c. Members of his unit went through a difficult time, anchoring to each other, which got them through firefights. Unfortunately, anchoring together in combat did not help them after combat operations were over. They came back with serious problems, including alcoholism; suicides; emotionless, except for anger; and feelings of betrayal. He had troubles sleeping and nightmares; proven time and time again. He couldn't eat or associate with anyone. Neither stimulants nor depressants helped. Unfortunately, this was at a time when the Army was struggling with the symptoms and consequences of post-traumatic stress disorder (PTSD). They were not getting effective assistance. Problems within his brigade escalated until the only solution he saw was to go absent without leave (AWOL). d. There was no peace even when he slept, which only produced nightmares. When he was awake, he could apply rational thoughts and actions to his experiences. In sleep, nothing was rational or followed a logical path. It was during a nightmare that he hurt his friend, an act that resulted in him being convicted for 23 years, even though she testified on his behalf. Fourteen of those years have been served inside federal prison, and now he is trying to build a life out of what is left. e. One of his conditions for parole is to see a psychologist for PTSD treatment from his time in Iraq. Unfortunately, this must be done by a civilian doctor because the Department of Veterans Affairs (VA) will not help him due to his dishonorable discharge. The irony is this treatment is federally mandated as part of his parole and the PTSD situation resulted from his service in combat. He could have best benefited from PTSD treatment when he first came out of combat, not a decade and a half later when he had to overcome those problems on his own while confined in a federal prison. Today, PTSD casualties are being treated much better. His case was one of the first to be tried by military courts-martial. f. Adding to his PTSD situation was medication and vaccinations, which the effects of are finally coming to light. The anthrax shots he was administered caused him all of the negative side effects. Some of these effects include changes in the brain’s chemistry and thought process; including sleep cycles; mood swings of various nature; complete changes in behavior and decreases in rational cognitive decision-making capabilities. The malaria pills, containing mefloquine, also caused many bazaar side effects that have not been fully researched at this time. g. His record verifies that when he returned from combat, he had a loss of hearing in his left ear (Tinnitus); TBI (traumatic brain Injury), severe damage to both eyes, with the worst being in his right; and the inability to stand up straight, or walk properly with his right leg. He has constant excruciating headaches that cause him to be nauseous and sometimes black out. He had two seizures that he is aware of. All of the above was known before his conviction. Which brings up the question as to why he was never treated for these things but they were brought up in his trial, and he was ridden by higher ups and told to "toughen up" and "suck it in." Those are not solutions. h. He would like an upgrade so that he can finally get treated for PTSD, in an environment with like minds. The "dishonorable" status has hindered him from moving on in life, not only socially but in the workforce as well. He is struggling with two low paying jobs, of over 60 hours a week, just to be broke. Iraq is on repeat in his head over and over, and all day long making it impossible to focus on the task at hand. He needs to be around those he can relate to, those that understand what it's like, and those who understand who he is because they have experienced similar things. Had he not served his country and brought home the effects of war, he would have never had the incident that got him convicted. i. Since his conviction, he has completed three vocational schools; numerous treatment programs; and over fifty Adult Continuing Education courses. He is a certified G.E.D. instructor and has helped roughly 100 men graduate. He is currently taking two theology courses; one in Hinduism; and the other in Buddhism; both of which he has been studying for 10 years. 3. The applicant enlisted in the Regular Army on 9 October 2003. After completing his initial entry training, he was assigned overseas on or about 5 January 2004, for duty in the Federal Republic of Germany. He served in Iraq from on or about 25 February 2004 through 15 July 2004, and attained the rank/grade of private first class PFC/E-3. 4. The applicant’s acting company commander issued a pretrial confinement memorandum on 13 April 2005. The commander noted the following as the facts surrounding his confinement: a. The accused was facing trial in a foreign court for the attempted murder of Ms. on 11 April 2005. On 13 April 2005, German District Court in Frankfurt issued a pre-trial order against PVT in accordance with Article 22 Supplementary Agreement to the Status of Forces Agreement and USAREUR Regulation 550-56 paragraph 8; U.S. Forces assumed responsibility for the continued custody of PVT . If the German courts retain jurisdiction, then U.S. Forces would maintain custody of PVT . If German courts release jurisdiction, PVT would be charged at a General Court- Martial for attempted murder, AWOL and breaking restriction. b. On 5 April 2005, PVT did not report to work all day; his unit reported him AWOL 9 April 2005; effective 8 April 2005. He recently received Article 15 punishment with restriction the day prior to his AWOL. He remained AWOL until returned to military control through apprehension on 12 April 2005. c. During part of this AWOL period on 11 April 2005, PVT was in at the home of . went to her bed that night while PVT stayed on the couch in another room. She awoke to stabbing her in the back with a knife. She tried to fight back. Then tried to strangle her from behind, and said in english, "Be quiet, it will be over soon." then fled the scene. crawled to a neighbor's house to call for help. had a collapsed lung and was initially in a life threatening condition. Later at the hospital, identified a Soldier from Baumholder named as her attacker. She said-there was no one else in the apartment. drove from Frankfurt to Baumholder to the residence of . Meanwhile an alert was given to all Baumholder MP's to be on the lookout for the car that was driving. called the Baumholder police because had obvious wounds and blood stains. Baumholder MP's apprehended. The MP's gave custody of to the Baumholder German police. d. The acting company commander was at the Baumholder Politzei station when was in custody there. wanted to talk about what happened. The undersigned read rights. related a story about how an unknown intruder committed the attempted murder. said he was unsuccessful in thwarting the attack in the apartment. despite her severe stab wounds ran down the stairs into a neighbor's apartment. saw the intruder run away. He tried to go to where he thought fled to and could not get inside. Thereupon, drove to Baumholder to house. did not contact the police or any emergency services about the attack. 5. The applicant’s immediate commander, issued a second pretrial confinement memorandum on 20 May 2005, restating the same facts as above. 6. The applicant was tried before a general court-martial on or about 25 February 2006, in the Federal Republic of Germany. General Court-Martial Order Number 42, shows he was convicted of the offenses: * premeditated attempted murder, of, by stabbing her with a knife at or near Frankfurt, Germany, on or about 11 April 2005 * absenting himself from his unit, without authority on or about 8 April 2005, until he was apprehended on or about 12 April 2005 * breaking restriction on or about 8 April 2005 7. The court sentenced him to confinement for 23 years and separation from the service with a dishonorable discharge. His sentence as provided for reduction to the grade of E-1 and confinement for 23 years, was approved and ordered executed on 14 December 2006; except for the portion extending to the dishonorable discharge. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 8. The applicant’s service records contains a U.S. Army Court of Criminal Appeal, Opinion of the Court, dated 19 March 2009. This document shows: a. The judge denied his appeal and ruled "Under the facts of this case and our de novo standard of review, [the applicant’s] conviction for attempted premeditated murder was factually and legally sufficient beyond a reasonable doubt." b. The court concluded they considered the other assignments of error and the errors personally asserted by [the applicant] pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and found them to be without merit. His findings of guilty and sentence were affirmed. 9. General Court-Martial Order Number 250, issued by the Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, Oklahoma on 16 December 2009, noted the applicant's sentence had been affirmed and ordered his dishonorable discharge duly executed. 10. The applicant was discharged on 30 April 2010. His DD Form 214, shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial, with his service characterized as dishonorable. He was awarded the National Defense Service Medal, Global War Terrorism Expeditionary Medal, Global War Terrorism Service Medal, Army Service Ribbon and the Overseas Ribbon. 11. 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. 12. The applicant applied to the ABCMR for a correction of his Enlisted Record Brief (ERB) and DD Form 214 to show his combat time and award of the Army Commendation Medal (ARCOM) and the Combat Infantryman Badge (CIB). The Board determined his records should be corrected by adding the ARCOM and "SERVICE IN IRAQ FROM 20040225 - 20040715." The Board denied the portion of the request pertaining to correcting his ERB or showing the CIB on his DD Form 214, due to insufficient documentation. 13. The applicant was tried before a general court-martial on or about 17 October 2011, in the U.S. Army Combined Arms Center & Fort Leavenworth, Fort Leavenworth, KS. General Court-Martial Order Number 6, shows he was convicted for the following offenses, on or about 12 August 2010: * with intent to usurp and override lawful military authority, did, create a disturbance by attacking, barricading himself in Special Housing Unit West of the United States Disciplinary Barracks, and exhorting others to join him in defiance of lawful military authority * willfully disobeying a lawful command from, his superior commissioned officer, to return to his cell and lock down, or words to that effect * willfully damaging military property of the United States, the amount of said damage being in excess of $500 * assaulting, who then was and was then known by the accused to be a sentinel in the execution of his duty, by punching him in the face; by kicking him with his shod foot; and by striking him in the face 14. The court sentenced him to five years confinement. Only so much of his sentence as extended to confinement for two years was approved. 15. The applicant appealed his sentence. The appellant court ruled the sentence as approved by the convening authority was affirmed. 16. The applicant does not provide and his available service record is void of documentation to support his claims that he was suffering from PTSD when he committed the outlined offenses. 17. The applicant provides the following for consideration: * a two page self-authored statement as detailed above * letter of support; attesting that the applicant’s service in Iraq was recognized by his Brigade Commander with the Army Commendation Medal; this was a period the military was working through PTSD issues; he also suffered from Mefloquine side effects; and his experiences with the applicant while incarcerated * The American Legion, Magazine, excerpt about the problems with the antimalarial drug Mefloquine 18. The Board should consider the applicant's overall record and statement in accordance with the published equity, injustice, or clemency determination guidance. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Dishonorable discharge was due to PTSD he developed while on active duty. 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) and the military electronic medical record (AHLTA) were also reviewed. No hard copy military medical records or civilian medical documentation was provided for review. Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 09 Oct 2003. During his military career, he was assigned overseas to Germany 05 Jan 2004 - 24 Feb 2006. He was also deployed to Iraq from 25 Feb 2004 - 15 Jul 2006. During his service, his awards included the Army Commendation Medal and the National Defense Service Medal. A General Court-Martial Order, dated 14 Dec 2006, in Wiesbaden, Germany, found him guilty of “attempt to murder EKM by means of stabbing her with a knife and by means of strangulation” on 11 Apr 2005. The Defense’s attempt to mitigate the attempted murder due to his Atypical Parasomnia was rejected. He was also found guilty for going AWOL from 08 Apr 2005 - 12 Apr 2005 and breaking restriction from his unit in Baumholder, Germany on 08 Apr 2005. He was sentenced to 23 years in confinement. There was another charge of assault on an NCO in his unit on 07 Apr 2005, not included in the General Court Martial. He received a Dishonorable discharge on 30 Apr 2010. Another General Court Martial, dated 12 Aug 2010, U.S. Disciplinary Barracks, Fort Leavenworth, KS included guilty verdicts of “barricading himself in the Special Housing Unit,” assaulting two prison staff (PFC and Specialist) and disobeying an order to “return to his cell and lock down.” Some of these charges (i.e. assault on PFC and disobeying order to return to cell) were later overturned by the U.S. Army Court of Appeals, dated 11 Apr 2013. The military electronic medical record (AHLTA) noted his first session with a psychiatrist occurred a week following the date he allegedly attempted to kill a woman in which he reported confused thinking. Other noteworthy symptoms reported in subsequent sessions were auditory hallucinations when falling asleep and awakening, and paranoia. His last psychiatric session occurred at Fort Leavenworth on 13 Oct 2006, even though the last medical note there was on 22 Dec 2012. The Problem List included Anxiety Disorder NOS, Non-Organic Atypical Parasomnias, ADHD, Residual State, Affective Personality Disorder, Major Depressive Disorder with Psychotic Features, Non-Organic Sleep Disorder and Personality Disorder. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disabilities. The Problem List included Anxiety Disorder NOS (13 Oct 2006), Non Organic Sleep Disorders and Attention-Deficit/Hyperactivity Disorder, Residual State (21 Apr 2005). The few behavioral health related notes were AHLTA notes from his period of military service. 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, minor assaultive behavior, intrusive memories, nightmares, interpersonal difficulties, poor sleep and self-medication with drugs/alcohol. Attempted murder with use of a knife and strangulation is not part of the natural history or sequelae of PTSD and, as such, is not mitigated under Liberal Consideration. BOARD DISCUSSION: 1. The Board determined that the applicant’s request is not warranted. Evidence available for review does not support the applicant's claim that PTSD is a mitigating factor in the applicant's misconduct. 2. 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: 1. The Board agreed that the applicant’s discharge characterization is acurately reflected on his DD Form 214. 2. 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): Not Applicable 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 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. 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. As a result of extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD, the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed PTSD may have been a mitigating factor in the Soldier's misconduct that served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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 (TBI), 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 sexual assault or sexual harassment was unreported, or 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. 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (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) AR20200001603 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001603 10 ABCMR Record of Proceedings (cont) AR20200001603 9