ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: January 14, 2020 DOCKET NUMBER: AR20160017357 APPLICANT REQUESTS: an upgrade of his general discharge to an honorable discharge and reinstatement of his rank/pay grade. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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 filed and received an upgrade of his discharge to a general discharge. The entire basis of his separation was done completely wrong and without just cause. His separation lacked any evidence and the command that conducted the investigation did so on a gender bias reason. He was awarded three awards of the Army Good Conduct Medal and two awards each of the Army Achievement Medal and Army Commendation Medal. He deployed three times to Iraq, with no flaws on his record. He received several good rated NCOERs. He jointed this brigade and battalion and he instantly went from a stealer NCO to someone that harasses Soldiers and females. For these reasons, he feels his rank should be should reinstated on his DD Form 214 to Sergeant (SGT), with an honorable characterization of service. 3. The applicant provided his: * DA Form 2166-8, for the period from 1 December 2010 through 30 November 2011, showing he received ratings of “Successful” and “Fully Capable” * DA Form 2166-8, for the period from 1 December 2011 through 30 November 2012, showing he received rating of “Successful” and “Fully Capable” * DD Form 214, for the period from 9 May 2003 through 6 February 2015 4. Review of the applicant’s service records show: a. He enlisted in the Regular Army (RA) on 9 May 2003 and he held military occupational specialty 92G (Food Service Specialist). b. He served in Iraq from 15 February 2004 to 15 February 2005. He reenlisted in the RA on 3 January 2005. He again served in Iraq from 22 August 2006 to 10 September 2007. He again reenlisted in the RA on 8 February 2008. c. He was promoted to the rank/pay grade of SGT/E-5 on 1 December 2009. d. He reenlisted in the RA on 19 February 2010 and on 3 February 2011. He served in Iraq from 31 January to 6 December 2011. e. On 9 October 2013, an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) Findings and Recommendations memorandum, stated a formal investigation was initiated against the applicant for engaging in behavior which directly and adversely affected one of his junior Soldiers. f. On 3 March 2014, he was issued a Memorandum of Reprimand for creating a hostile work environment which compromised his leadership ability, the performance of a Junior Soldier, and most importantly; negatively affected the Soldier emotionally and psychologically. The memorandum stated: (1) The applicant had violated the standards of conduct expected of an NCO and he had discredited the United States Army. On 9 October 2013, a formal investigation concluded he had engaged in behavior which directly and adversely affected one of his junior Soldiers. Numerous accounts established an extreme level of discomfort by his junior Soldier whenever she interacted with him. That discomfort was only displayed toward him. On more than one occasion, he made inappropriate comments to her which were sexual in nature, he sent sexually implicit text messages to her, and otherwise acted in a wholly unprofessional manner and singled her out on occasion. (2) The Army and the command consistently emphasized standards of conduct expected of every Soldier. Despite knowing what was right and knowing the emphasis placed on treating all Soldiers equally and without discrimination or harassment of any kind, he chose to make sexually charged statements toward one of his junior Soldiers. His actions and comments were completely unacceptable, and were of a nature to bring discredit upon the military service. That same conduct casted significant doubt upon his ability to make sound decisions which put the Army's mission and values before his personal desires. As an NCO, he was expected to set, enforce and observe the highest standards of personal conduct. As his commander, he was extremely disappointed by the applicant's blatant disregard for established standards of conduct and his unwillingness to be truthful and forthcoming. Such conduct would not be tolerated. g. On 31 March 2014, he acknowledged receipt of the reprimand and elected to submit statements in his own behalf. His available record is void of this rebuttal. h. On 9 April 2014, he requested a Commander’s Inquiry for a negative NCOER, for the period from 23 August to 4 November 2013, based upon an inadequate AR 15-6 investigation. His available record is void of the outcome. i. On 15 April 2014, flagging action was initiated against him for an involuntary separation. j. On 24 April 2014, the AR 15-6 Investigating Officer (IO) recommended the Brigade Commander begin the paper work to chapter the applicant out of the Army. The applicant’s actions to bring discredit upon the Armed Forces were inexcusable. He has a documented history of similar conduct that had no place in the military and he had zero remorse for his actions. He was in no way worthy of being an NCO in the United States Army. k. On 29 April 2014, the Brigade Judge Advocate reviewed the investigation conducted by the IO into allegations against the applicant of sexual abuse of a child and lewd acts by exposing his children to nude photos, and he determined: * the investigation complied with the legal requirements of AR 15-6 * the investigation did not contain any errors that would affect the rights of any individuals * there was sufficient evidence to support the findings of the IO and the recommendations were consistent with the findings l. On 15 May 2014, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), for commission of a serious offense for the following reasons: committing a violation of paragraph 7-5, AR 600-20 (Personnel General – Army Command Policy) and his intentionally displaying a photograph of X_. X_’s bare breast as his profile picture on a public forum. He recommended the applicant be issued an under other than honorable conditions discharge and advised him of his rights. m. On 15 May 2014, after consulting with counsel, he acknowledged receipt of the proposed separation action and its effects, the rights available to him, and the effects of any action taken by him in waiving his rights. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge * he requested to have his case heard by a board of officers n. On 19 May 2014, his chain of command recommended approval of the proposed separation action. o. On 23 October 2014, he submitted a list of witnesses and requested their appearance at his separation board. p. On 27 October 2014, an administrative separation board convened and determined the applicant should be separated from the Army prior to the expiration of his current term of service, under the provisions of AR 635-200, chapter 14-12c, for commission of a serious offense, the board, in a closed session and upon secret ballot with a majority vote taken, had made the following findings and recommendations: the allegations in the notification of proposed separation was supported by a preponderance of the evidence and the findings did warrant the applicant's separation. q. On 14 December 2014, an administrative law attorney found no legal objection to the administrative separation board proceedings. He stated: (1) The errors identified in those proceedings were ultimately harmless, as they did not materially prejudice a substantial right of the Soldier in accordance with (IAW) AR 635-200, paragraph 2-6. The applicant was clearly aware that he was facing separation based on both the sexual harassment of a subordinate and the nude photograph of his ex-wife. He and his counsel clearly prepared for the proceedings accordingly, primarily presenting matters related to the alleged sexual harassment (including requesting that the now-civilian complainant attend, although she could not be located). The underlying misconduct, which the applicant was aware would be at issue, did constitute a serious offense under the Uniform Code of Military Justice. Violation of Article 93 carried a maximum punishment of a dishonorable discharge and 1 year in confinement. (2) In light of the foregoing, there was no legal objection to holding the errors in these proceedings "harmless," in that none of them substantially prejudiced the applicant’s opportunity to prepare for the proceedings and respond to the allegations, which were duly considered by the board - the outcome of which would not have been altered by the absence of the error. However, if the separation authority concluded that one or more of those errors did substantially prejudice the applicant (that was, but for the error the board would had reached different findings or recommendations) AR 635-200 allowed for the proceedings to be set aside and referred to a new board IAW paragraph 2-6f. r. On 20 January 2015, after careful consideration of all matters, the separation authority approved the findings and recommendations of the board and directed the applicant’s separation from the Army prior to the expiration of his current term of service and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest grade. s. He was discharged accordingly on 6 February 2015. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, for Misconduct (Serious Offense). He completed 11 years, 8 months, and 28 days of active service. This form also shows he was awarded/authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal (2nd Award) * Meritorious Unit Commendation * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (4th Award) * Driver and Mechanic Badge with “M” Bar t. On 15 June 2016, the Army Discharge Review Board (ADRB) determined that the characterization of the applicant’s service was too harsh based on the length and quality of his service, to include his combat service. Accordingly, the ADRB voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The ADRB determined the reason for discharge was proper and equitable and voted not to change it. u. An advisory opinion was received from the Clinical Psychologist, Army Review Boards Agency (ARBA), on 29 November 2019, in the processing of this case. The ARBA medical advisor was asked to determine if the applicant had a behavioral health condition at the time of service that contributed to the misconduct leading to his discharge based on the information provided by the Board, personnel records, DoD electronic medical record, and the Joint Legacy Viewer. The Clinical Psychologist reiterated the applicant’s period of service and stated: (1) Although during the medical evaluation board process the Department of Veterans Affairs (VA) determined the applicant did not have post-traumatic stress disorders (PTSD), in June 2015, a VA Compensation and Pension examination diagnosed PTSD. While the provider noted the applicant was holding a full time job and “generally maintaining himself at an adequate level…,” she supported the diagnosis by stating “To his credit he realizes he needs to work and make money and as a result he makes good efforts to suppress potentially disruptive PTSD symptoms.” With regards to his separation, the applicant stated he was discharged for false sexual harassment charges even though he had “a great deal of documentation proving that the charges were falls (sic).” (2) Based on a thorough review of available records, the applicant carried a variety of diagnoses in-service and was currently service-connected for PTSD. However, none of the diagnoses, to include PTSD, mitigated the basis for separation; sexual harassment and posting inappropriate pictures on social media were not a natural progression or normal sequelae of his behavioral health conditions. v. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. The applicant did not respond. 5. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. The separation authority would direct an immediate reduction to the lowest enlisted grade for a Soldier separated under other than honorable conditions. 6. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found that relief was not warranted. The Board carefully considered the applicant's statement his record of service, the frequency and nature of his misconduct, his separation proceedings and the reason for his separation. The Board considered and concurred with the review and conclusions of the Medical advising official. Based on a preponderance of evidence, to include the misconduct which led to the applicant’s separation, the Board found that the characterization of service received at the time of discharge was not in error or unjust. Additionally, the Board agreed to deny restoration of his rank/pay grade on the same grounds. The Board did note that the applicant had some additional periods of honorable service which are not currently reflected on his DD Form 214 and recommend that change be completed to more accurately reflect his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 * removing the following statement in Block 18 (Remarks) of his DD Form 214: “Continuous honorable active service: 20030509-20050102” * adding the following statement to Block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 20030509-20110202.” 2. The Board further determined 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 characterization of his discharge. X 2/12/2020 CHAIRPERSON Signed by: 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 covers the policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. The regulation states in: a. Paragraph 1-13 – when a Soldier was to be separated under other than honorable conditions, the separation authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a – 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. 3. 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. NOTHING FOLLOWS