BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015588 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015588 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. BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20150015588 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 reconsideration of his previous request to upgrade his bad conduct discharge (BCD). 2. The applicant states that during his discharge and court-martial hearing, his command did not take his medical history into consideration. When he joined the Army, he had high hopes of equality no matter his disability or sexuality. He went through basic training at Fort Benning and advanced individual training (AIT) at Fort Lee as an assistant platoon sergeant. When he got to Fort Rucker, AL, was when the trouble began; he was laughed at, talked about, and isolated because he was gay. 3. He states he tried to commit suicide, was under 24-hour watch, and he had to see someone at Lyster Hospital three times a week for his attempted suicide. He asked to be reassigned and was told “no” because they stated that they would continue to bother him until he killed himself. That is when he left, because no matter how many times he reported the problems and complained, he was not heard. He felt he had two options: to die or leave 3. The applicant provides his DD Form 214 (Certificate of Release from Active Duty) and GO Order Number 5, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 9 February 2006. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060015255 on 21 June 2007. 2. On 1 June 2000, the applicant enlisted in the Regular Army for a period of 3 years. After initial entry training, he was awarded military occupational specialty 92Y (Unit Supply Specialist). 3. The applicant's DA Form 2-1 (Personnel Qualification Record) shows that on 28 November 2000, he was assigned to Headquarters and Headquarters Company, 1st Battalion, 145th Aviation Regiment, Fort Rucker, AL. 4. DA Forms 4187 (Personnel Action) show he was in an absent without leave (AWOL) status on 2 occasions and had 1 period of civil confinement. 5. General Court-Martial (GCM) Order Number 2, issued by Headquarters, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, AL, shows that on 2 June 2004, the applicant was convicted at a GCM of: * being AWOL from on or about 2 July 2001 to 11 April 2002 and on or about 12 April 2002 to 29 December 2003 * stealing letters and packages addressed to another Soldier between 9 April 2001 and 15 May 2001 His approved sentence included forfeiture of all pay and allowances, confinement for 16 months, and a BCD. 6. GCM Order Number 5, issued by the DA, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 9 February 2006, shows on or about 15 July 2005, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and his sentence. The portion of the sentence extending to confinement having been served and Article 71(c) having been complied with, the BCD was ordered executed. 7. The applicant’s DD Form 214 shows he was separated on 16 August 2006 under the provisions of Army Regulation 635-200 (Personnel Separations–Enlisted Personnel), chapter 3, by reason of court-martial, and received a BCD. He had 2 years, 9 months, and 23 days of creditable active Federal service and more than 1,000 days of lost time. He had approximately 626 days of excess leave. REFERENCES: 1. The "Don't Ask - Don't Tell" (DADT) policy was implemented in 1993 during the Clinton administration. This policy banned the military from investigating service members about their sexual orientation. Under that policy, service members could be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 2. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under DADT or prior policies. The memorandum states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge (the change should be to "Secretarial Authority" SPD Code JFF) * characterization of the discharge to honorable * the RE code to an immediately-eligible-to-reenter category 3. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and there were no aggravating factors in the record, such as misconduct. 4. The memorandum further states that although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. 5. The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is DOD policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted. Although DADT was repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law. Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during those same or prior periods. Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action. 6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. 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. c. 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. 7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States 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. 8. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. 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. DISCUSSION: 1. The applicant contends, in effect, that because he was gay and received harassment from his unit, he felt that he had to go AWOL. 2. The law has since been changed, and current standards may be applied to previously-separated Soldiers as a matter of equity. When appropriate, Soldiers separated for homosexuality should now have their reason for discharge and characterizations of service changed. In this case, the applicant's discharge was not based solely on DADT and there are significant aggravating factors in the record. The evidence does not support a change to his discharge as a result of the repeal of DADT. 3. The evidence of record shows that the applicant's GCM was not due to his sexual preference, but extended periods of AWOL and stealing another Soldier’s mail. The GCM and resulting BCD were warranted by the gravity of the offenses for which he was charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 4. The record further confirms that the applicant was only discharged after completion of the entire appellate process and only after his sentence was affirmed by the appropriate appellate court. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015588 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015588 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2