ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 24 March 2021 DOCKET NUMBER: AR20200007255 APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) 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 2 January 2020 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 2 January 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 September 2002 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 31 October 2007 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 requesting an upgrade because he has served his debt to the U.S. military and has since been a productive citizen/veteran. Serving at Fort Bragg, he saw fellow comrades suffer from medical conditions; the trauma of spouse abuse; and had a comrade killed while in training; all which left bad memories. He finds it hard to sleep, play with his kids, and adjust to everyday life. He is seeking medical attention from the Department of Veterans Affairs (VA); however, his discharge negates their services. He is seeking an opportunity to speak to psychiatrists as soon as possible. After his discharge, he was ill informed by an Army National Guard (ARNG) recruiter about seeking to fix his discharge, so his records reflect his ability to get medical treatment. b. His discharge was given to correlate to his adverse actions as a young Soldier. Now he has been rehabilitated and has become more productive in his career. He is seeking an upgrade to assist him and his family, for a better financial and spiritual future. He has several medial conditions that stem from active duty and he is requesting to get them treated, immediately. 3. The applicant enlisted in the Regular Army on 27 October 1998. He attained the rank/grade of private first class/E-3. 4. Before a general court-martial on or about 15 May 2001, at Fort Bragg, NC, the applicant was tried and convicted of the following violations of the Uniform Code of Military Justice (UCMJ): a. One specification of violating Article 86; specifically, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 29 September 2000; and for without authority, absenting himself from his unit, from on or about 8 February 2001 through on or about 8 March 2001. b. Two specifications of violating Article 92; specifically, for being derelict in the performance of his duties, by negligently failing to provide a point of contact where he could be reached during Division Ready Brigade (DRB)-1 callout, on or about 28 August 2000 and on or about 25 September 2000. c. One specification of violating Article 123; specifically, for making a false signature as an indorsement, with the intent to defraud, on a United Services Automobile Association (USAA) Federal Savings Bank security agreement, on or about 8 August 2000. d. Two specifications of violating Article 134; specifically, for knowingly causing the delivery though U.S. Mail or commercial interstate carrier of a false security agreement, with the intent to defraud; and knowingly transmitting by wire through interstate commerce, a writing for the purpose of defrauding Chase Manhattan Bank; both on or about 8 August 2000. e. Additional Charge I was one specification of violating Article 86; specifically, for without authority, failing to go at the time prescribed to his appointed place of duty, on or about 29 September 2000. f. Additional Charge II was for specifications of violating Article 134; specifically, for making and uttering worthless checks by dishonorably failing to maintain funds; on divers occasions between on or about 1 December 2000, and on or about 27 January 2001, wrongfully and unlawfully making and uttering certain checks, with the intent to defraud, and for the procurement of lawful currency and things of value, without sufficient funds. 5. The applicant's sentence included confinement for 30 months; reduction to the rank/grade of private/E-1; and separation from service with a BCD. His sentence was approved on 6 December 2001, except for that portion extending to the BCD, and was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 6. The document from the U.S. Army Court of Criminal Appeals, affirming the findings and sentence in the applicant's case, is not available for review. 7. General Court-Martial Order Number 116, issued by the Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 26 July 2002, noted that the sentence in the applicant's court-martial sentence had been approved and ordered his BCD duly executed. 8. The applicant was discharged on 13 September 2002, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, as the results of a court-martial sentence. His service was characterized as bad conduct. 9. The applicant applied to the ABCMR requesting an upgrade of his reentry (RE) code so he could reenlist in the U.S. Army Reserve; however, the Board denied his requests on 29 January 2004. 10. The applicant’s record contains a copy of a DD Form 214, certified to be a true copy on 9 March 2007. This form appears to be altered to show the applicant was honorably discharged in the rank/grade of sergeant SGT/E5 in 2002. 11. The applicant enlisted in the North Carolina Army National Guard (NCARNG), on 9 March 2007, in the rank/grade sergeant SGT/E5. He was declared an unsatisfactory participant and was separated on 31 October 2007, under the provisions of Army Regulation 135-91 (ARNG and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), Chapter 4, for continuous and willful absence. The NGB Form 22 he was issued shows he received a general discharge and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his remaining service obligation. 12. The details of his USAR discharge are not available for review. However, Orders 11-231-00019, issued by Headquarters, 81st Regional Support Command, Fort Jackson, SC on 19 August 2011, ordered the applicant's reduction to the rank/grade of private/E-1, effective 19 August 2011, and his discharge under the provisions of Army Regulation 135-178 (ARNG and Army Reserve – Enlisted Administrative Separations), effective 24 August 2011. His service was characterized as under other than honorable conditions. 13. The applicant provides his DD Form 214 and NGB Form 22 for consideration in his case. 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. The Board should consider the applicant's requests in accordance with the published equity, injustice, or clemency determination guidance. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), and the VA's Joint Legacy Viewer (JLV). There were no records in the Health Artifacts Image Management Solutions (HAIMS). The applicant requests a discharge upgrade. He is claiming PTSD and another mental health illness. He shared that he has bad memories from seeing fellow Soldiers suffer from medical conditions, trauma from spouse abuse, and a fellow Soldier killed in training. He also stated that he had several medical conditions that were incurred during active duty that he would like to be seen for at the VA. 2. The applicant was discharged after a general court-martial ORDER dated 06Dec2001, for the following charges for which he was found guilty: * With intent to defraud, falsely made signature of his First Lieutenant 08Aug2000 * Knowingly caused to be delivered a false security agreement 08Aug2000 * Knowingly transmitted by means of wire a writing to defraud a bank 08Aug2000 * Failed to go to appointed place of duty 28Sep2000 * Several instances between 01Dec2000 to 27Jan2001, uttered worthless checks * Was AWOL from 08Feb2001 to 07Mar2001; and 08Mar2001 to 13Sep2002 * Was derelict in performance of duties in that he negligently failed to provide a point of contact 28Aug2000 and 25Sep2000 3. The applicant’s record contains a DD Form 214 (discharge date 13Sep2002) with Bad Conduct characterization of service which showed reentry code 4 (not normally eligible); as well as a second DD Form 214 that showed a discharge date in 2002 with ‘Honorable’ characterization of service. An NGB Form 22 with Under Honorable Conditions (General) characterization of service showed he was transferred into USAR effective 31Oct2007. The form had reenlistment eligibility code 3 (ineligible without a waiver). That notwithstanding, AHLTA search revealed that the applicant had Sep, Oct and Nov 2009 Iraq in-theatre clinic visits. Moreover, JLV search revealed that he has been diagnosed with the following behavioral health (BH) conditions: PTSD, Depressive Disorder, Insomnia, Specified Depressive Disorder and Rule Out Alcohol Use Disorder. In an 11Jun2015 BH note, he reported that he was in combat: Iraq (2006-2011) and Afghanistan (2011, 2013); and that he had a 14-year Army career as a transportation specialist with an Honorable discharge. He also stated that he had earned an MBA, and was a computer programmer. Per JLV search, the applicant has not been service connected by the VA for any disabilities and he began being seen at the VA in 2014. 4. The applicant requested a discharge upgrade for the Bad Conduct discharge in 2002. There were no in-service medical records for that time in service that were available for review. Records do not show any combat deployments prior to or during that period of service. In regards to the 03 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance; there was no documentation to support a behavioral health condition at the time of the 2002 discharge and therefore no diagnosis with which to mitigate the conduct that led to his discharge. A Mental Status Evaluation Report, nor a discharge exam were found in the record. Evidence is insufficient to support that the applicant had any conditions that failed retention standards in accordance with AR 40-501 chapter 3 in 2002. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, the reason for his separation. The Board considered the medical records, documents provided by the applicant 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 no supporting evidence of post-service achievements or letters of reference for consideration of a clemency determination. Base on the evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX 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. 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. 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. 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. A Soldier 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. 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. 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 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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//