IN THE CASE OF: BOARD DATE: 30 August 2021 DOCKET NUMBER: AR20200006173 APPLICANT REQUESTS: an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Five character statements and letters of recommendation FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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: a. While deployed, he was having mental health problems, to include his drinking problem. However, he was not afforded the opportunity to seek help from mental health. He deployed again, which is when he got in trouble and was discharged. He was receiving treatment at Fort Sill and Fort Eustis [sic} b. He has since moved on the best he can, trying to lead an exemplary life. He is now happily married with two children and one on the way. He needs to seek mental health at the Veterans Affairs Medical Center. 3. The applicant provides five character statements and letters of recommendation, written by his spouse, friends, and former colleagues, all of which attest to his work ethics, his values, dependability, and selfless dedication to his family. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 13 July 2000. b. General Court-Martial Order Number 116, dated 25 October 2005, reflects he was convicted of one specification of violating a lawful general order by possessing, distributing, and consuming alcohol and two specifications of adultery. The court sentenced him to be reduced to the grade of Private/E-1, to forfeit all pay and allowances, to be confined for 6 months, and discharged from the service with a bad conduct discharge. The sentence was adjudged on 23 August 2005. Paragraph “Action” is as follows: “The sentence is approved and, except for the bad conduct discharge, will be executed.” c. General Court-Martial Order Number 30, dated 22 January 2009, reflects the sentence adjudged on 23 August 2005, as promulgated by General Court-Martial Order Number 11, dated 25 October 2005, was finally affirmed. Article 71(c) having been complied with, the bad conduct discharge will be executed. d. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he was discharged on 15 July 2009, under the provisions of Army Regulation (AR) 635- 200 (Active Duty Enlisted Administrative Separations), chapter 3, court-martial (other), with a characterization of service of bad conduct. He completed 8 years, 6 months, and 18 days of net active service this period with lost time from 23 August 2005 to 11 January 2006. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Bad Conduct discharge was due to mental health and alcohol problems that he developed while on active duty. b. 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 reviewed as well. No hard copy military medical records or civilian medical documentation was provided for review. c. Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 09 Aug 2000. During his military career, he was deployed overseas to Kuwait covering from at least 01 Nov 2004 - 27 Sep 2005 (i.e. drawing from AHLTA treatment dates at Camp Arifjan, Kuwait). His awards included the Army Good Conduct Medal, National Defense Service Medal and the Army Service Ribbon. His job position was as a Cargo Specialist. A General Court Martial, Camp Arifjan, Kuwait, dated 25 Oct 2005, found him guilty of “possessing, distributing and consuming alcohol,” having “sexual intercourse” with a Specialist who was not his spouse, and committing an “indecent act” with her by having sexual relations “in a tent while other soldiers were present” (24 Apr 2005). He was found not guilty of rape. He received a Bad Conduct discharge on 15 Jul 2009 with narrative reason, Court-Martial, Other. The military electronic medical record (AHLTA) included one behavioral health related note, AHC Reynolds, Fort Sill, Oklahoma, dated 17 Nov 2005, which indicated he was seen for medication review for Panic Disorder without Agoraphobia, and also diagnosed with PTSD. The Problem List included Posttraumatic Stress Disorder, Unspecified Psychoactive Substance Dependence and Chronic Posttraumatic Stress Disorder. d. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). A Suicide Prevention Risk Assessment Screening Note, dated 21 Nov 2019 indicated, “’I keep having nightmares all the time, headlights are coming at me and I get run over by a truck’…most recent suicidal ideation was the most severe ideation within the last 30 days…can’t sleep only 4 hours a day, can’t work, don’t get along with people…increasing use marijuana.’” The Problem List included Posttraumatic Stress Disorder (12 Jun 2008), Unspecified Psychoactive Substance Dependence (12 Jun 2008) and Chronic Posttraumatic Stress Disorder (17 Feb 2006) – all corresponding with the AHLTA problem list. e. Based on the information in the applicant’s military records, military medical records and VA records, 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. An “indecent act” of sexual behavior with a female Specialist, while other soldiers were present in the same tent, is not part of the natural history or sequelae of PTSD, or other behavioral health conditions, and, as such, is not mitigated under Liberal Consideration. 7. AR 635-200 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 8. 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 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 moderate the severity of the punishment imposed. 9. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 10. 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. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided letters of reference in support of a clemency determination. However, based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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. REFERENCES: 1. Title 10, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel, as a result of court- martial. 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. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200006173 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1