ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20160019217 APPLICANT REQUESTS: his under other than honorable conditions be upgraded to general, under honorable conditions or an honorable discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Medical records from Phelps County Regional Medical Center – Sleep Study Results, dated 21 February 2011 * Medical records from Virginia Physicians, Inc., dated 18 November 2016 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 his discharge is inequitable because it was based on one isolated incident within 48 months of service with no other adverse actions. He states he was incarcerated for 125 days prior to his discharge. With his current characterization of service he cannot take advantage of post-military service benefits at the Department of Veterans Affairs (VA). He seeks medical treatment benefits and home loan assistance from the VA. His family cannot participate in educational benefits such as the New GI Bill because of his characterization of service. He was recently diagnosed with sleep apnea and high blood pressure for which he seeks treatment at his local VA facility. He concludes saying he served this Country faithfully during his period of service and now he asks for compassion from the Board by upgrading his characterization of service. He acknowledges his release from active duty was no one’s fault, but his own. However, his characterization of service of under other than honorable conditions is a life sentence, it is like a scarlet letter that will haunt him for the rest of his days. 3. On 12 July 2007, the applicant enlisted in the Regular Army in pay grade E-4. He attended Officer Candidate School at Fort Benning, Georgia. 4. Orders 351-5114, dated 17 December 2007, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, discharged him from the Regular Army on 13 February 2008 for the purpose of accepting a commission in the U.S. Army. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he served honorably for 7 months and 2 days. 5. His electronic military personnel record does not contain his DA Form 71 (Oath of Office – Military Personnel) completed when an officer accepts a commission in the Regular Army and its Reserve Component. 6. He entered active duty as a commissioned officer on 14 February 2008. He was promoted to the rank and grade of captain/O-3 effective 1 April 2011. 7. At Fort Leonard Wood, Missouri, on 18 January 2012, court-martial charges were preferred against the applicant. A DD Form 458 (Charge Sheet) shows on diverse occasions between on or about 18 October 2011 and on or about 27 October 2011, he wrongfully peered into the windows of two females to see them naked. Under the circumstances the applicant’s conduct was unbecoming an officer and a gentleman, a violation of the Uniform Code of Military Justice (UCMJ). 8. On 27 January 2012 the applicant submitted a memorandum to his chain of command requesting resignation for the good of the Service in lieu of court-martial. He indicated he did not desire a court-martial by a board of officers. He understood he could consult with legal counsel. He acknowledged that if his resignation was accepted he would receive an under other than honorable conditions characterization of service. He personally requested a general, under honorable conditions characterization of service. He further acknowledged that if his resignation was accepted, regardless of the type of discharge certificate furnished, he would be barred under laws administered by the VA from benefits administered by that Department. (The applicant’s military personnel record contains all associated documents to include military police reports, sworn statements and witness accounts regarding his misconduct to support his request for resignation. The complete case file was made available to the Board as evidence.) 9. On 6 February 2012, the applicant’s trial counsel verified with his chain of command their support of his request for resignation in lieu of court-martial. The applicant’s chain of command each recommended issuance of an Under Other Than Honorable Conditions Discharge Certificate. 10. On 1 March 2012, the U.S. Army Human Resources Command (AHRC) prepared a memorandum for the Deputy Assistant Secretary of the Army (DASA) (Review Boards (RB)). In the memorandum the government representative states she is forwarding the applicant’s request for resignation in lieu of court-martial in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4 to the DASA (RB). The general officer show cause authority recommended the applicant’s request for resignation be disapproved. 11. On 19 March 2012, the DASA (RB) signed a memorandum stating the Department of the Army Ad Hoc Review Board reviewed the applicant’s resignation request. She did not accept his resignation and returned his request to the general court-martial convening authority for his action. The DASA (RB) decision was made on behalf of the Secretary of the Army. 12. On 1 August 2012 the applicant was tried during a general court-martial for violating Article 133 of the UCMJ for on divers occasions peer into the windows of two females to see them naked. Under the circumstances the applicant’s conduct was unbecoming an officer and a gentleman. He pled guilty and was found guilty. His sentence included confinement for 115 days and dismissal from the Service. The Commanding General of Headquarters, U.S. Army Maneuver Support Center of Excellence, Fort Leonard Wood, Missouri approved the sentence and ordered it executed. His case was promulgated in General Court-Martial Order Number 22, dated 29 November 2012. 13. On 28 February 2013, the applicant’s military trial record was reviewed by the U.S. Army Court of Criminal Appeals who affirmed the findings and the sentence approved by the general court-martial convening authority. 14. The applicant with counsel appealed to the U.S. Court of Appeals for the Armed Forces. His appeal was denied on or about 31 May 2013. 15. On 7 August 2013, General Court-Martial Order Number 16 was issued by Headquarters, Department of the Army, which stated the applicant’s dismissal would be executed by midnight 21 August 2013. The official ordering the applicant’s dismissal was the Chief of Staff of the U.S. Army. 16. Orders 254-1312 issued at Fort Sill, Oklahoma where the applicant had been confined ordered his dismissal from the Regular Army effective 21 August 2013. 17. Accordingly, the applicant was dismissed from the Regular Army and issued a DD Form 214 showing he had served for 5 years, 3 months and 6 days. His DD Form 214 shows he did not have combat experience in Southwest Asia. His highest award was the Army Achievement Medal. His DD Form 214 contains the following pertinent information: * Item 23 (Type of Separation) – dismissal or discharge as appropriate * Item 24 (Character of Service) – under other than honorable conditions * Item 25 ( Separation Authority) – Army Regulation 600-8-24, paragraph 5-17 * Item 28 (Narrative Reason for Separation) – court-martial 18. As the applicant seeks medical benefits, his application was forwarded to the Army Review Boards Agency (ARBA) medical staff for review under the provision of Title 10, USC, section 1552. The purpose for the review was to determine if his medical conditions should have been considered under the Disability Evaluation System. The staff psychologist reviewed his military medical electronic records, his electronic military personnel record, his VA records under the Joint Legacy Viewer and his evidence. * he had no psychiatric diagnoses at the time of his service * he was seen by military medical providers for physical conditions * he is not receiving VA medical treatment or benefits * he provided evidence he has sleep apnea (and high blood pressure) * no medical condition (physical or psychiatric) failed medical fitness standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) * it is unknown if he had behavioral health conditions at the time of the misconduct, but the circumstances of his arrest and court-martial are consistent with a diagnosis of voyeurism * there are no known behavioral health or medical health conditions that would mitigate his misconduct 19. On 22 December 2017 the applicant was sent a copy of the medical advisory opinion for his review and comment to which he responded by email on 22 January 2018. In his response, he clarified his position. He states, "I am NOT suggesting that some medical disability was the reasons behind my actions that lead to my dismissal from the service." He states he is seeking an upgrade of his discharge characterization of service and feels he would be able to better articulate himself to the members of the Board in person. He has developed medical conditions that are attributed to his physical exertion in the performance of his duties. The VA turned him away because of his type discharge. The stigma of his type of discharge haunts him to this day. He accepted the dismissal and incarceration as his sentence. He views his characterization of service as cruel for he now bears it as a scarlet letter. He states his 5 years of honorable service should not be washed away by a moment of weakness. When he was at Leavenworth, he met others with far greater crimes receive a less severe punishment. To him, he is the victim of being "made the example of." He continues by saying he is repentant of his waywardness and one day hopes to be buried with his grandfather in a military cemetery. He pleads for a personal appearance hearing to personally plead his case before the members of the Board. He lacks the monetary resources to hire an attorney to represent him. 20. 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 on the basis of 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD policy for consideration of discharge upgrade requests. The Board considered the applicant’s service record, the frequency and serious nature of his misconduct, the conclusions of the advising official and the applicant’s response, the nature of his separation and whether to apply clemency. The Board found no in-service mitigation for his misconduct and the applicant provided no post-service achievements or letters of reference in support of a clemency determination. Based on the preponderance of evidence and the considering the serious nature of the misconduct, the Board determined that the discharge and the character of service the applicant’s received were not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 :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. Title 10, USC, 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so 2. Army Regulation 600-8-24 (Personnel General – Officer Transfers and Discharges) sets the basic authority for the transfer or discharge of officers from active duty. The regulation provides the following instructions and guidance concerning officer separations. : a. Paragraph 1-18 stated an officer who has been convicted and sentenced of dismissal or dishonorable discharge will not be discharged prior to completion of the appellate review. b. Paragraph 1-22, when an officer’s tour of active duty is terminated due to discharge, retirement or release from active duty the period of service will be characterized as "Honorable, "General (Under Honorable Conditions)", "Under Other Than Honorable", or "Dishonorable." The character of service will be predicated on the officer's behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty. c. Paragraph 1-22a, an Honorable Discharge Certificate will be issued when the separation is based solely on pre-service activities, substandard performance of duty, or final revocation of a security clearance for reasons that do not involve acts of misconduct. d. Paragraph 1-22b, a General Discharge Certificate will be issued when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A separation under honorable conditions will normally be appropriate when an officer: * submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct * is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation Is appropriate * is discharged for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge under other than honorable conditions is appropriate e. A dismissal as defined in the regulation is a release of an officer from the service without honor upon sentence of dismissal by a court-martial. f. Paragraph 1·24a, a commissioned or warrant officer under Investigation for an offense chargeable under the Uniform Code of Military Justice that could result in dismissal or punitive discharge may not be referred for or continue disability processing unless: * the investigation ends without charges * the commander exercising proper court-martial jurisdiction dismisses the charges * the commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence g. Paragraph 3-13 states an officer may submit a resignation for the good of the Service in lieu of a general court-martial when court-martial charges have been referred against the officer with a view toward trail by court-martial. A tender of a resignation does not preclude or suspend the court-martial procedures. A convening authority will not take action on the findings and the sentence until the Secretary of the Army or designee has acted on the request for resignation for the good of the Service. The resignation memorandum and supporting evidence will be forward to the Deputy Assistant Secretary of the Army (Review Boards) for review and consideration. When the request is not accepted, it will be returned to the general court-martial convening authority for processing through the U.S. Army judicial system. An officer separated under this paragraph normally receives a characterization of service of under other than honorable conditions. h. Paragraph 3-13j states an officer who resigns for the good of the Service (regardless of the character of service received) is barred from rights under laws administrated by the Department of Veterans Affairs based on the period of service from which the officer resigned. i. Paragraph 4-2b, action may be or will be initiated for eliminating officers in the Active Army for misconduct, moral or professional dereliction, or in the interests of national security. An under other than honorable conditions discharge will normally be issued when an officer is discharged or involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed. j. Paragraph 5-17 provides the rules for processing dismissal of an officer due to general court-martial proceedings. A Regular Army officer will be retained on active duty until the appellate review is completed or placed on excess leave in accordance with regulatory guidance. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the Board. The Director or the Board may grant a formal hearing whenever justice requires it. 4. Title 10, USC, section1552 a(1) states, in pertinent part, 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. Except as provided in paragraph (2), such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. a. Section 1552(g) states any medical advisory opinion issued to a board established under subsection (a)(1) with respect to a member or former member of the armed forces who was diagnosed while serving in the armed forces as experiencing a mental health disorder shall include the opinion of a clinical psychologist or psychiatrist if the request for correction of records concerned relates to a mental health disorder. b. Section 1552 (h)(1) applies to a former member of the armed forces whose claim under this section for review of a discharge or dismissal is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, and whose post-traumatic stress disorder or traumatic brain injury is related to combat or military sexual trauma, as determined by the Secretary concerned. c. Section 1552 h (2) states in the case of a claimant described in paragraph (1), a board established under subsection (a)(1) shall review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the claimant; and review the claim with liberal consideration to the claimant that post- traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant's discharge or dismissal. ABCMR Record of Proceedings (cont) AR20160019217 6 1