ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160015382 APPLICANT REQUESTS: his bad conduct discharge be upgraded. 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) * Enlisted Record Brief (ERB) * Six NCO [noncommissioned officer] Evaluation Reports (NCOER) * A Neuropsychological Report, 25 January 2013, from U.S. Army Medical Department Activity, Department of Tele-Health, Tele-Behavioral Health Service, Arlington, VA * A Sanity Board Evaluation, 26 June 2013, from Walter Reed National Military Medical Center (WRNMMC), Bethesda, MD * A letter, 8 August 2013, from Weill Cornell Medical College, New York, NY * A synopsis of rehabilitation efforts, 16 October 2013 * Medical records from 1 March 2013 – 5 March 2013 * Active medical problems list created on 27 January 2014 * Certificates of completion from 7 July 2014 – 15 September 2014 FACTS: 1. The applicant states his entire military service wasn't given the full weight of consideration. His combat experience and behavioral health issues were also not considered. a. He states his defense team never questioned the prosecution's apparent star witness during their investigation of his charges and they sat in the briefings pretty much silent because he was already being counseled to take a plea bargain. His defense never reviewed the physical evidence found or the actions of the investigators after his complaint of violation of his right to remain silent. b. All of his actions were being controlled by academy alumni to include the division officers assigned, which included the prosecution, judges and that fact made for a very intense assignment. He could have easily been assigned to one of the engineer battalions there. He feels that he never received a complete fair and balanced hearing based on the facts that his case was presided over by an academy graduate, the prosecution team had members that were academy graduates, the company commander, brigade commander and the convening authority were all academy graduates. c. His case was about invasion of privacy. He feels his sentence was excessive because he lost his career, livelihood and the respect of a lot of people plus be registered as a sex offender after serving confinement. His case was more about where it happened plus the media coverage and the decisions made were during the height of the military's campaign against sexual assault, public outcry and congressional oversight. 2. The applicant served in the Regular Army from 13 April 1990 – 13 April 2016. His last reenlistment was on 8 November 2001 for an indefinite period. He had continuous honorable service from 30 April 1990 – 7 November 2001. According this his DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant served in the following designated imminent danger pay areas: * Bosnia – 8 October 1996 – 10 April 1997 * Kuwait – 18 December 2000 – 22 April 2001 * Iraq - 12 March 2004 – 12 March 2005 * Iraq – 6 November 2007 – 10 February 2009 3. On 9 July 2009, the applicant was assigned to the U.S. Military Academy, West Point, NY. On 10 October 2013, the applicant was reassigned to Headquarters and Support Company, Headquarters and Headquarters Battalion, 10th Mountain Division (Light Infantry), Fort Drum, NY. 4. The applicant provided six NCOERs for the periods 1 August 2006 - 31 July 2007, 1 August 2007 - 31 July 2008, 31 August 2007 - 1 June 2009, 2 June 2009 - 1 June 2010, 2 June 2010 - 1 June 2011 and 2 June 2011 - 1 June 2012. a. In all of the above NCOERs the Army Values are checked "YES" for all values. b. In all of the above NCOERs the rater checked "Among the Best" for the applicant's overall potential for promotion and/or service in positions of greater responsibility. c. In all of the above NCOERs the senior rater indicated the applicant was "Successful" in overall performance and "Superior" in overall potential for promotion and/or service in positions of greater responsibility. 5. A Neuropsychological Report, 25 January 2013, stated the applicant was interviewed on 11 and 12 January 2013. a. The applicant reported that approximately 1 year ago he was removed from his position at West Point where he was responsible for cadets and an investigation was begun against him. He went on to state that he had not been formally charged though he did see a piece of unidentified paper that listed "cruel maltreatment, voyeurism, and failure to follow orders" written which he stated were from a "one time event." Prior to gaining sobriety he had been drinking 4-6 beers a day, 18 beers a weekend since his 2005 deployment. He reported that he would rarely experience intoxication on the beer because he had a tolerance as a result of heavy drinking from the time he was 12/13 until he joined the military. Multiple tests were administered. The pattern of his responses on the The Millon Clinical Multiaxial Inventory, 3rd edition (MCMI-III) was inconsistent as he responded differently to similar questions which suggest random responding, carelessness, fatigue, cognitive impairment, or deliberate uncooperativeness. Additionally, he displayed a tendency to magnify the level of experienced illness or symptoms which may suggest a characterological inclination to complain, be self-pitying, or convey feelings of extreme vulnerability with his current situation. Given these concerns which result in questionable validity the measure cannot be meaningfully interpreted. b. Summary – formulation: The applicant's overall neuropsychological test pattern did not suggest the presence of global brain dysfunction. It was likely that the applicant met the diagnostic criteria for Multisystem Developmental Disorder, characterized by deficits with executive functioning, cognitive flexibility, emotional regulation, and attention. Despite the hypothesis that he likely experienced post-traumatic stress disorder (PTSD) as a child the current diagnosis of PTSD is related to deployment exposure. The applicant met the diagnostic criteria for Alcohol Dependence with physiological dependence that is in early partial remission. Information from the clinical interview and testing identified personality feature associated with Avoidant and Schizoid Personality disorder; however, he did not rise to the level of diagnostic criteria for these disorders. 6. On 26 June 2013, a Sanity Board convened to inquire into the competency, mental responsibility, and psychiatric diagnosis of the applicant. a. The Board indicated the applicant had a severe mental disease or defect at the time of his alleged misconduct. He was diagnosed (at the time of the offense) with: * Alcohol Use Disorder, severe * PTSD * Persistent Depressive Disorder * Voyeuristic Disorder * Avoidant Personality Disorder b. The Board indicated the applicant's severe mental disease at the time of the alleged criminal conduct did not result in him being unable to appreciate the nature and quality or wrongfulness of his conduct. c. The Board indicated the applicant was not presently suffering from a mental disease or defect rendering him unable to understand the nature of the proceedings against him or to conduct or cooperate intelligently in the defense. 7. A letter, 8 August 2013, from Weill Cornell Medical College verified the treatment of the applicant for the diagnosis of PTSD related to his deployments to Iraq, as well as a comorbid Major Depressive Disorder at the Program for Anxiety and Traumatic Stress Studies (PATSS) at Weill Cornell Medical College/New York Presbyterian Hospital. The applicant was assessed on 21 February 2012 by an experienced psychologist using standardized clinician-administered and self-report measures. He was enrolled in and completed a funded treatment trial focused on the treatment of military related PTSD. 8. On 16 October 2013, a memorandum provided a synopsis of the rehabilitation efforts of the applicant. Since March 2013, the applicant had attended 40 groups and seven individual counseling sessions. The applicant was an active participant, positive and working member in every group session. The applicant provided his contact information to other group members to provide support to them in their efforts at recovery. The applicant took the initiative to encourage other group members to attend Alcoholics Anonymous (AA) meetings by offering to provide transportation to the meetings. The applicant reported attending the AA meetings held on Fort Drum and supported those meetings by volunteering to lead the meetings at various times. During his time at Fort Drum, the applicant worked on his recovery by using the Army Substance Abuse Program (ASAP) program as a support for his recovery and by actively participating in AA in the community 9. On 5 March 2014, the applicant was tried before a general court-martial. He pled guilty and was found guilty of nine specifications of wrongfully committing indecent conduct, to wit, making a video of 18 cadets' buttocks, genitalia, and nipple between on or about 9 July 2009 and on or about 17 May 2012. a. The applicant's sentence consisted of reduction to E-1, forfeiture of all pay and allowances, confinement for 33 months, and a bad conduct discharge. b. On 15 September 2014, the convening authority approved the sentence and except for that portion of the sentence pertaining to a bad conduct discharge, ordered it to be executed. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 10. In accordance with Title 10, U.S. Code, section 1552 (10 USC 1552), the authority under which this Board acts, the Army Board for Correction of Military Records (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. 11. Army Regulation 635-200 Active Duty Enlisted Administrative Separations), states a Soldier may be given a bad conduct discharge pursuant only to an approved general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 12. The affirmed findings by the U.S. Army Court of Criminal Appeals and the order that ordered the affirmed sentence be duly executed were not available for review. 13. On 13 April 2016, the applicant was discharged with a bad conduct discharge as the result of a court-martial. He completed 23 years, 10 months, and 22 days of net active service. He had 760 days of time lost. His DD Form 214 shows he was awarded or is authorized the: * Bronze Star Medal * Army Commendation Medal (9 awards) * Army Achievement Medal (7 awards) * NATO Medal * Joint Meritorious Unit Award * Valorous Unit Award * Army Superior Unit Award (2 awards * Army Good Conduct Medal (7th award * National Defense Service Medal * Army Forces Expeditionary Medal * Southwest Asia Service Medal with broze service star * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Armed Forces Service Medal * Iraq Campaign Medal with 4 bronze service stars * Army Service Ribbon * Sapper Tab * Kuwait Liberation Medal (Saudi Arabia) * Kuwait Liberation Medal (Kuwait) * Combat Action Badge * Air Assault Badge * Driver and Mechanic Badge with Driver-T and Driver-W Bars * Expert Marksmanship Badge with Rifle Bar 14. On 24 September 2018, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. a. The available record supports PTSD, adjustment disorder, major depression single episode mild and multiple symptomatic diagnoses existed at the time of the applicant's military service. The applicant met medical retention standards for all medical conditions. b. The behavioral health conditions were not mitigating for the misconduct. Deliberate and recurrent criminal actions are not clinic manifestations of PTSD, depression or adjustment disorder. c. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses, which led to his separation from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. On 27 September 2018, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. The applicant has not provided any comments. 16. The applicant's record shows he completed four combat tours and was awarded numerous decorations. The Board should consider these and all other factors in accordance with the published equity, injustice, or clemency determination guidance in the memorandum, 25 July 2018, from the Under Secretary of Defense for Personnel and Readiness. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, the medical advisory opinion and published guidance for consideration of discharge upgrades were carefully considered. Based upon the preponderance of evidence, the Board agreed the discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 10 USC 1552 states 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 chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under subsection (a) may extend only to: a. Correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)); or b. Action on the sentence of a court-martial for purposes of clemency. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court- martial. That the appellate review must be completed and the affirmed sentence ordered duly executed. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. An under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable. 3. A memorandum, 3 September 2014, from the Secretary of Defense (known as the Hagel Memorandum) 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 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. Army Directive 2014-28 (Requests to Upgrade Discharge by Veterans Claiming PTSD), 3 November 2014, implements the supplemental guidance proved by the Hagel Memorandum to ARBA regarding requests to upgrade discharges by veterans claiming PTSD. 5. A memorandum from the Office of the Under Secretary of Defense for Personnel and Readiness, 25 August 2017, (known as the Kurta Memorandum) provided clarifying guidance regarding mental health conditions, sexual assault, and sexual harassment when reviewing requests for changes in discharges. 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. Invisible wounds are some of the most difficult cases and there are frequently limited records for the boards to consider, often through no fault of the veteran, in resolving appeals for relief. This clarifying guidance ensures fair and consistent standards of review for veterans with mental health conditions, or who experienced sexual assault or sexual harassment regardless of when they served or in which Military Department they served. a. Liberal consideration will be given 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 sexual assault. b. Evidence may come from sources other than a veteran's service record. c. Evidence may also include changes in behavior; inability of the individual to conform their behavior to the expectations of a military environment; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues. d. Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including behavior consistent with experiencing sexual assault or sexual harassment. e. The veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. f. Mental health conditions, including PTSD; TBI; sexual assault; and sexual harassment impact veterans in many intimate ways, are often undiagnosed or diagnosed years afterwards, and are frequently unreported. g. Mental health conditions, including PTSD; TBI; sexual assault; and sexual harassment inherently affect one's behaviors and choices causing veterans to think and behave differently than might otherwise be expected. h. Reviews involving diagnosed, undiagnosed, or misdiagnosed TBI or mental health conditions, such as PTSD, or reported or unreported sexual assault or sexual harassment experiences should not condition relief on the existence of evidence that would be unreasonable or unlikely under the specific circumstances of the case. i. Service members diagnosed with mental health conditions, including PTSD; TBI; or who reported sexual assault or sexual harassment receive heightened screening today to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate. Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge. However, when compared to similarly situated individuals under today's standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care. //NOTHING FOLLOWS//