IN THE CASE OF:	   

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20150004202 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

	a.  An upgrade of his bad conduct discharge (BCD) to an honorable discharge.

	b.  Amending his DD Form 214 (Certificate of Release or Discharge from Active Duty) by showing in:

* item 11 (Primary Specialty) military occupational specialty (MOS) 92F (Petroleum Supply Specialist) and MOS 88M (Motor Transport Operator) instead of MOS 92Y (Unit Supply Specialist)
* item 18 (Remarks) honorable service for the period 24 January 2005 to 26 December 2006
* item 19b (Nearest Relative) JF instead of SF

2.  The applicant states, in effect:

* he requests an upgrade of his discharge so that he can offer his family better living conditions
* he was forced to plead guilty to keep his girlfriend and unborn son out of prison
* he asked for help from someone of a higher rank, but they turned away because of the nature of the charges
* he self-medicated as a result of depression and his past problems in the Army (suggesting he may have been affected by post-traumatic stress disorder (PTSD))
* he was told he would be going to jail to do a greater good
* he has been trying his best to provide for his family but has found it harder than ever
* if he could go back in time, he would have received the help he needed and remained a promising Soldier
* he really wants to come back on active duty and respectfully requests favorable consideration

3.  The applicant provides:

* two certificates of live birth
* child custody documents from a Circuit Court in Illinois (IL)
* letter, dated 2 April 2012, from the property manager where the applicant lived and worked
* letter from the IL Department of Human Services regarding financial support for two of the applicant's children
* summons, dated 28 March 2013, from a Circuit Court in IL showing the applicant as a defendant in a claim for $7,500 in rent and damages
* applicant's résumé
* letter, dated 4 August 2009, from the Veterans Resource Office, Chicago, IL
* certificate, date 17 November 2011, showing the applicant graduated from a 30-week program for Computer Operations Technology
* transcript of studies for the Computer Operations Technology curriculum
* document showing student loan information
* seven drug prescription documents
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 27 December 2006
* DA Form 3286 (Statements of Enlistment), dated 27 December 2006
* DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus), dated 27 December 2006
* DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army (RA)), dated 27 December 2006

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the RA on 24 January 2005 for a term of 3 years and 22 weeks.  His records also show he completed the 12-week Unit Supply Specialist Course around late August 2005.  His Enlisted Record Brief (ERB) shows he held MOS 92Y; it does not list training for or the award of any other MOS.

3.  His ERB also shows following MOS training, he was assigned to A Company, 277th Aviation Support Battalion, Fort Drum, NY, around October 2005.  He deployed to Afghanistan from 17 February 2006 to 1 February 2007.  

4.  On 8 January 2008, the applicant was arraigned at Fort Drum, NY, on offenses at a general court-martial convened by the Commander, Fort Drum.  He was convicted by a general court-martial after pleading guilty to two specifications of Article 112a (Wrongful use, possession, etc., of controlled substances), Uniform Code of Military Justice (UCMJ).

* wrongful possession of marijuana with the intent to distribute
* wrongful possession of cocaine with the intent to distribute

5.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for 15 months, and a BCD.  

6.  On 28 May 2008, the convening authority approved only so much of the sentence as provided for a reduction to E-1, confinement for 10 months, and discharge with a BCD, and, except for that part of the sentence extending to BCD, he ordered the sentence executed.  The record of trial was forwarded for an appellate review.  

7.  On 20 February 2009, his case was reviewed by the U.S. Army Court of Criminal Appeals.  Based upon that review, the findings and sentence as approved by the convening authority were affirmed.  The opinion of the court contains a brief discussion of the facts of the applicant's case, essentially stating:

* the applicant pled guilty to possessing cocaine and marijuana with the intent to distribute
* the applicant obtained the drugs and began advertising among his fellow Soldiers that he had drugs for sale
* another dealer was selling drugs at a cheaper price and the applicant was unable to sell his drugs
* as a result he stored the drugs in a pair of shoes in his barracks room
* after another Soldier implicated the applicant, agents of the U.S. Army Criminal Investigation Command (CID) obtained search authorization
* the CID conducted a search revealing three small bags, later determined to be cocaine and marijuana
* the applicant subsequently confessed to the offenses charged

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 152, dated 9 September 2009, shows the convening authority ordered the applicant's bad conduct discharge duly executed based upon the completion of all required post-trial and appellate reviews.

9.  On 23 November 2009, the applicant was discharged accordingly.  His 
DD Form 214 shows he completed 4 years, 1 month, and 13 days of net active creditable service, with 261 days of lost time.  His DD Form 214 also shows: 

* he was awarded or authorized the National Defense Service Medal, Afghanistan Campaign Medal with two bronze service stars, Army Service Ribbon, Overseas Service Ribbon, and North Atlantic Treaty Organization Medal
* he was deployed to Afghanistan during the period 17 February 2006 to 1 February 2007
* his character of service is shown as bad conduct and the narrative reason for separation is court-martial, other
* item 18 states the applicant was separated on the basis of temporary records and the applicant's affidavit; it also indicated the applicant did not complete his first full term of service

10.  A review of his official military personnel file (OMPF) reveals an award certificate for the Army Achievement Medal.  The period is shown as being from 28 February 2006 to 13 February 2007.  It shows the applicant was assigned as a petroleum supply specialist with Company A, 277th Aviation Support Battalion, which was part of Task Force Freedom, Task Force Falcon, Combined Joint Task Force 76.  The award was given by the 277th Aviation Support Battalion.


11.  The applicant provides:

	a.  A letter, dated 4 August 2009, from the Veterans Resource Office, Chicago, IL, which states the applicant is a homeless veteran and requests assistance on his behalf.

	b.  Seven drug prescription documents which show the applicant has been prescribed six medications:

* Risperidone tablets - used for treating schizophrenia or bipolar disorder; it is used to treat irritability caused by autistic disorder and is an atypical antipsychotic
* Citalopram tablets - for treating depression and is a selective serotonin reuptake inhibitor; it works by restoring the balance of serotonin, a natural brain chemical which helps to improve certain mood problems
* Trazodone tablets - treats depression and can also be used to relieve anxiety disorder and chronic pain; it is an antidepressant and is thought to work by increasing the activity of serotonin
* Gabapentin capsules - used for treating seizures associated with epilepsy, and is also used for treating nerve pain; the medicine is an anticonvulsant
* Pantoprazole tablets - treats irritation of the esophagus caused by Gastroesophageal Reflux Disease; it works by decreasing the amount of acid produced in the stomach
* Tramadol tablets - for treating moderate to severe pain 

	c.  His DD Form 214, wherein he has annotated items he asserts are errors made in its preparation:

* item 11 (Primary Specialty) shows 92Y, but he contends his MOS was 92F (Petroleum Supply Specialist); and he was later reclassified as an 88M (Motor Transport Operator)
* item 18 does not show his period of honorable service before his reenlistment, which took place while deployed in Afghanistan in December 2006
* the name of his nearest relative is wrong

	d.  DD Form 4, dated 27 December 2006, which shows the applicant reenlisted for 6 years and had prior active military service of 1 year, 11 months, and 3 days.  The station at which he reenlisted is listed as Army Post Office (APO), Army Europe 09354 (Afghanistan).

	e.  DA Form 3340-R which shows the applicant was approved for reenlistment on 27 December 2006.  He is shown as being assigned to Company A, 277th Aviation Support Battalion.

12.  A letter from the American Legion, dated 29 July 2015, essentially states, after careful review of the evidentiary record, it is their opinion the issues raised by the applicant on his DD Form 149 amply advance his contentions and substantially reflect the probative facts needed for an equitable review.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures for the completion of the DD Form 214.  It states source documents will include the Soldier's ERB, separation approval authority documentation, and any other document authorized for filing in the OMPF.  Regarding the completion of selected items, it states:

	a.  For primary specialty, the ERB is the source document.  The titles of the MOS should be entered when the Soldier has served for at least 1 year.

	b.  As to the entry which states, Soldier (has) or (has not) completed first full term of service.  Routinely, a Soldier should not be considered to have completed the first full term of service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.

   c.  When a Soldier has previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, the phase "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first date of service on the DD Form 214) until (commencement of current enlistment)."  Then enter the specific periods of reenlistment as prescribed above (emphasis added).

14.  Army Regulation 600-8-104 (Army Human Resource Records Management) prescribes policies and procedures for the filing of documents in the OMPF.  Regarding MOS it states orders which award primary MOS, as well as orders for secondary MOS, special qualification identifiers, and additional skill identifiers, are required to be added to the OMPF

15.  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.

16.  Army Regulation 635-200, in effect at the time, prescribes policy and procedures for enlisted separations.

	a.  Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

   b.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.
   
   c.  Paragraph 3-7b states 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.

17.  The DSM Fifth Revision (DSM-5) was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

18.  As a result of the 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 under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which 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.  
19.  In view of the foregoing, 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.

20.  BCM/NRs are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
* Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* Was the applicant's condition determined to have existed prior to military service?
* Was the applicant's condition determined to be incurred during or aggravated by military service?
* Do mitigating factors exist in the applicant's case?
* Did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* Was the applicant's misconduct premeditated?
* How serious was the misconduct?

21.  Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  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.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions (emphasis added).  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  With respect to the upgrade of the applicant's characterization of service:

	a.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  He pled guilty to and was found guilty of the two specifications charged.  He was given a bad conduct discharge pursuant to a general court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted given the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

	b.  The applicant suggests he was suffering from PTSD at the time of his discharge and PTSD played a role in contributing to the misconduct which led to his discharge.

	c.  The applicant presents no evidence showing he either has a diagnosis or is receiving treatment for PTSD from a behavioral health specialist.

	d.  Guidance from DOD requires the Board to exercise caution when weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge must be carefully weighed against the severity of the misconduct.  

	e.  PTSD is not a likely cause of premeditated misconduct.  The Board must therefore give careful consideration when weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct.

	f.  He was charged with and pled guilty to possession of illegal controlled substances with the intent to distribute.  The intent to distribute clearly suggests premeditation and, thus, given DOD guidance, PTSD should not be considered as mitigating the applicant's misconduct.

	g.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  In this case, clemency is not warranted.

	h.  Based upon the foregoing, there is no basis upon which to grant the relief requested.

2.  As to the correction of his MOS, he provides no evidence to substantiate his assertion his primary MOS was first 92F, and that he was later reclassified into MOS 88M.  There is insufficient evidence in the form of a certificate of training, orders awarding him the requested MOS, or a service school academic evaluation report, to substantiate his contention regarding MOS 92F or MOS 88M.  Should he be able to provide supporting documentation, in the form of orders, within 1-year of the Board's decision, his application can be reconsidered.

3.  As to the correction of the name of his nearest relative: 

	a.  The entries pertaining to the mailing address after separation as well as the name and address of the nearest relative are provided by the Soldier to the official preparing the DD Form 214.  The applicant would have been the one to provide this name and address for these entries on his DD Form 214 and when not available, the entries would have been obtained from his records.  

	b.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of evidence showing a material error or injustice, there is a reluctance to recommend those records be changed.  While it is understandable the applicant desires to revise the name of his relative, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records.  

	c.  Absent convincing independent and verifiable evidence to the contrary, it is presumed the applicant's military service records, including the DD Form 214, were correct at the time and there is no reason to change the DD Form 214.

4.  The applicant provides, and his OMPF contains, a DD Form 4 which clearly indicates he completed a period of honorable service prior to reenlisting on 27 December 2006.  Regulatory requirements mandate an entry which shows that period of honorable service, and his DD Form 214 should be corrected accordingly.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 23 November 2009, to show the following entry in item 18:  "Continuous honorable active service from 20050124 until 20061226.  Reenlisted on 20061227."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* upgrading the applicant's discharge to honorable
* revising item 11 of his DD Form 214 to show MOS 92F and MOS 88M, vice MOS 92Y
* 
amending his DD Form 214 to show the name of his nearest relative as SF vice JF



      _______ _   _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.

ABCMR Record of Proceedings (cont)                                         AR20150004202



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ABCMR Record of Proceedings (cont)                                         AR20150004202



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