IN THE CASE OF: BOARD DATE: 21 September 2021 DOCKET NUMBER: AR20210008261 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20110016596, on 21 February 2012. Specifically, he requests his bad conduct discharge (BCD) be upgraded to either an under honorable conditions (general) discharge or an honorable 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 17 November 2020 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110016596, on 21 February 2012. 2. The applicant states, in effect, he requests reconsideration of his request for a discharge upgrade to a more favorable discharge, due to his undiagnosed post- traumatic stress disorder (PTSD), which led him to use illegal drugs (cocaine) to stay awake because of his dreams. During this time, he had deployed in support of Operation Desert Storm. He came up positive on a unit urinalysis and was court- martialed and separated from service. He feels that this was an unjust discharge. He was confined for six months as well. Today’s military would have and is giving Soldiers a second chance. He understands and takes responsibility for his actions. If there was a handle on PTSD then, as they have now, he may have had a chance to get help. He feels he should be given something for his 17 years of honorable service. He made two mistakes and used bad judgement. 3. The applicant enlisted in the Regular Army on 13 June 1978. He reenlisted in the Regular Army on 14 December 1981; 21 October 1985; and 13 August 1991. 4. The applicant's record contains a DD Form 2624 (Specimen Custody Document- Drug Testing), dated 3 June 1994, which shows he provided a urine sample during a unit urinalysis that tested positive for cocaine. 5. Before a special court-martial on or about 12 September 1994, at Fort Carson, CO, the applicant was convicted, pursuant to his pleas, of two specifications of making false official statements, three specifications of wrongfully using cocaine, and one specification of wrongfully impeding and obstruction of justice during an investigation. His sentenced included his reduction to the rank/grade of private/E-1, confinement for a period of six months, and separation from service with a BCD. The sentence was approved on 22 December 1994 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. The U.S. Army Court of Military Review Army affirmed the findings and sentence on 14 February 1995. The U.S. Court of Appeals for the Armed Forces denied his request for review on 18 July 1995. 7. Special Court-Martial Order Number 36, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 11 August 1995, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 8. The applicant was discharged on 10 October 1995. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, as a result of court-martial, with his service characterized as bad conduct. a. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows his awards and decorations included the Army Achievement Medal, Army Good Conduct Medal (4th Award), and Southwest Asia Service Medal. b. Item 18 (Remarks) of his DD Form 214 contains the entries: * Immediate Reenlistments This Period—19780613–19811213, 19811214– 19851020, 19851021–19910812, 19910813–19970812 [sic, separated in 1995] * Member Has Not Completed First Full Term of Service 9. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 28 April 1997, determined he was properly discharged, and denied his request for relief. 10. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 21 April 2012, determined he was properly discharged, and denied his request pertaining to the upgrade of his BCD. However, the Board granted the applicant partial relief by amending his DD Form 214 as follows: a. Deleting from item 18 the entry "Member has not completed first full term of service"; and b. Adding to item 18 the entries "Continuous Honorable Active Service from 13 June 1978 through 12 August 1991" and "Member has completed first full term of service." 11. The applicant's record is void of evidence that substantiates his contentions regarding his PTSD. 12. 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. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 14. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting reconsideration of his previous request that his Bad Conduct discharge be upgraded due to Post-Traumatic Stress Disorder (PTSD). The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, the military electronic medical record (AHLTA), and the VA electronic medical record (JLV). b. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. He enlisted in the Regular Army on 13 June 1978 and was discharged on 10 October 1995 under the provisions of Army Regulation 635-200, Chapter 3, Section IV, as a result of court-martial with his service characterized as Bad Conduct. His court- martial convictions included two specifications of making false official statements, three specifications of wrongfully using cocaine, and one specification of wrongfully impeding and obstruction of justice during an investigation. c. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review and no hard copy medical documentation from the time of service was submitted for review. d. Review of VA electronic medical record (JLV) indicates that the applicant is 80% service connected to include 70% for Post-Traumatic Stress Disorder, 10% for Limited Motion of Ankle, 10% for Limited Extension of Knee, and 10% for Tinnitus. The VA medical record also diagnoses him with Adjustment Disorder with Depressed Mood and Unspecified Anxiety. He engaged in outpatient psychiatric medication management from 2016 to 2018, but has not engaged in any other behavioral health treatment through the VA. e. After review of all available information, documentation reveals that applicant is service connected for PTSD. According to Liberal Consideration guidance and given the nexus between PTSD and substance use, some of the misconduct that led to his separation is mitigated. Specifically, wrongfully using cocaine is mitigated. However, it is unlikely that applicant’s PTSD contributed to him making false official statements or wrongfully impeding and obstruction of justice during an investigation since these are purposeful, non-spontaneous actions that are not inherently characteristic of trauma. Therefore, this misconduct is not mitigated. 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 no evidence of post-service achievements or letters of reference in support of a clemency determination. 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 :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 to amend the decision of the ABCMR set forth in Docket Number AR20110016596, on 21 February 2012. 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 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. Chapter 3 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence had been ordered duly executed. 2. 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. 3. 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. 4. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 5. The Under Secretary of Defense (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. 6. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service 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) AR20210008261 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210008261 7 ABCMR Record of Proceedings (cont) AR20210008261 5