ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 21 September 2021 DOCKET NUMBER:  AR20200007913 
APPLICANT REQUESTS: . upgrade of his bad conduct discharge to general, under honorable conditions . personal appearance before the Board 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) . Department of Veterans Affairs Statement in Support of Claim . Certificate of Completion-Negotiations and Conflict Management . Participation in Brothers and Arms Letter . Applicant Letters 
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 he would like to qualify for Veteran Administration benefits. Due to Military Sexual Trauma (MST) in basic training, by Drill Sergeant B__, he dealt with Post Traumatic Stress Disorder (PTSD), by being absent without leave (AWOL). AWOL would not have happened if B__ did not sexually assault him. While serving this great country, he received the National Defense Service Medal Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. He also scored amongst the best in this Army Physical Fitness Test scores. He could also disassemble/reassemble an M-16 in great time. He was good at that. He enjoyed doing, serving his country. 

3. 
The applicant provides: 


a. 
VA Statement in Support of Claim, dated 22 March 2020, he states, it took him 25 years to apply for an upgrade, He is 49 years old and things have changed in his life. He is married and his wife is a veteran also. She received 2 honorable discharges from the Navy. They have a 6-year-old son. The both have changed him dramatically. He is a follower of God, a law abiding, and a tax paying citizen which make him better to serve his community. Being a husband and parent, comes with hug responsibilities. He looks forward to those challenges that life has to offer. He wants good education, not just for his son, but all kids. They are our future. With VA benefits he can use his college fund to send him to a school of his choice. He is not the same guy who joined the military and became a victim of MST. For years, he had no idea that it caused all sorts of problems. Now he realized what a profound affect it had on him. The assault crippled him for decades. Now he has resources to help him deal with that. Being responsible, is key. He asks the Board for help, for himself and his family as well as his community. Before social distancing, COVID-19, he was a basketball coach for his son and his team of kids 6-8 years old. He wanted to help change lives and help lead kids in the right direction. “By remembering who you are and what your stand for, were have an obligation to ensure that you will not be forgotten.. 

b. 
A Certificate of Completion, dated 24 October 2019, for satisfactory completion of Negotiations and Conflict Management. 

c. 
Participation letter in the Sheriff’s Brothers in Arms Program, dated 14 October 2019, shows he has been an active participant since 14 August 2019. The program offers veteran specific classes for daily life skills, parenting, PTSD awareness, substance abuse and financial education. The applicant participates in Recovery Support Groups, Sexually Transmitted Disease/Infection education, Authentic Manhood and Veteran’s Justice Outreach. He exhibited that he can overcome personal barriers within the program community. He has taken the initiative to hold a leadership role amongst his peers. He acclimates new veterans to the program community. He plans to pursue veteran-focused resources and he wants to help other veterans moving forward. 

d. 
In a self-authored assignment for Brothers in Arms he states his model mentor is his 5-year-old son. He loves and needs his daddy. His son has motived him to love himself enough to change his heart so that he will change his decision making, which will change his life. He will no longer be irresponsible. Being responsible and following rules, the laws of the land, will be key to his success of being his sons God Parents. He further states he is a people’s person. He loves to talk as well as listen. He is a believer in God. He likes to pray. He is an optimistic individual who does not like negative energy. He is open-minded to different ideologies. He loves to understand things that make logical sense. He looks forward to becoming the owner of a hat and clothing business. He will be going home when God is ready. 

4. Review of the applicant’s service records shows: 

a. 
He enlisted in the Regular Army on 25 June 1992 for 2 years. He hld military occupational specialty 11M (Fighting Vehicle Infantryman). 

b. 
His DA Form 2-1 (Personnel Qualification Record) shows, in item 21 (Lost Time)­he was AWOL from 24 May 1993 through 3 June 1993. 

c. 
On 4 June 1993, his duty status was changed from AWOL to confined in the hands of civilian authorities. He was apprehended by civilian authorities for possession and selling of narcotics. 

d. 
On 21 October 1993, his duty status was changed from confined in the hands of civilian authorities to confined in the hands of military authority, effective 2 September 1993. 

e. 
On 27 October 1993, the Report of Result of Trial, shows he was convicted by a General Court-Martial of: 


. one specification AWOL from 24 May to 1 September 1993 . two specifications of wrongful use of cocaine . two specifications of larceny of nonmilitary property 
f. 
The court sentenced him to a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 10 months. The convening authority approved the sentence and except for the bad conduct discharge, ordered it executed. The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. 

g. 
On 29 October 1993, his duty status was changed from confined in the hands of military authority to present for duty, effective 27 October 1993. 

h. 
Orders 189-127, dated 29 October 1993, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, assigned him to United States Army Personnel Control Facility. 

i. 
On 9 December 1994, the United States Court of Military Appeals affirmed the finding of guilty and affirmed the sentence. 

j. 
General Court-Martial Order 25, dated 26 April 1995, issued by the Headquarters, 1st Cavalry Division, shows the sentence was affirmed and the bad conduct discharge was ordered executed. The portion of the sentence pertaining to confinement had been served. 

k. 
Orders 150-15, dated 30 May 1995, ordered him discharged, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) effective 13 June 1995. 

l. 
He was discharged, 13 June 1995. His DD Form 214 shows he was discharged in the rank/grade of PVT/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations), Chapter 3, with a Bad Conduct Discharge. He completed 2 years, 6 months and 13 days of active service, with lost time from 24 May 1993 to 3 June 1993; 4 June 1993 to 1 September 1993 and 2 September 1993 to 26 October 1993. It also shows he was awarded or authorized: 


. National Defense Service Medal . Army Service Ribbon . Expert Marksmanship Qualification Badge with Grenade Bar . Sharpshooter Marksmanship Qualification Badge with Rifle Bar 
m. 
He did not qualify to have his case reviewed by the Army Discharge Review Board because his conviction was  by a general court-martial. 

n. 
On 5 April 2021, by letter, ARBA requested the applicant provide a copy of medical documents that support his issue of PTSD. No response as of 10 May 2021. 


5. 
On 29 June 2019, by letter, the U.S. Army Criminal Investigation Command (USACID) advised regarding a request for a sanitized copy of information from CID that a search of the Army criminal file indexes utilizing the information provided revealed no Military Sexual Assault/Trauma pertaining to the applicant. The records at their center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 

6. 
By regulation (AR 635-200), 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. 

7. 
By regulation (AR 15-185), the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. 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. 

8. 
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. 

9. 
MEDICAL REVIEW: 


The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. A review of JLV indicates the applicant requested assistance through the Veteran Justice Office on 10 Feb 2021 while in the Harris County Jail. He has had no further contact with the VA. He does not have a service connected disability rating. The applicant asserts he has PTSD from MST. The applicant did not provide medical documentation of any psychiatric conditions available for review. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. There is no documented behavioral health condition at the time of his service to consider with respect to mitigation of the misconduct that led to his discharge. Avoidant behavior is consistent with MST but is not consistent with larceny. If documentation of a PTSD diagnosis is subsequently provided, under liberal guidance AWOL and cocaine use is considered to be mitigated by PTSD. However, PTSD would not be considered a mitigating factor for larceny. 
BOARD DISCUSSION: 
1. 
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. 

2. 
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 evidence of post-service achievements and 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, and relief was not warranted. 


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 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, 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) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 


a. 
The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 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. 


3. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic policy 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. 
 Paragraph 3-11A 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 


4. 
 Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 

5. 
 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. 

6. 
 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. 

7. 
 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 based on 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. 


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