ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170001349 APPLICANT REQUESTS: * an upgrade of his dishonorable discharge to general under honorable conditions * correct block 11 (Primary Specialty) to reflect 88N10, Transportation Management Coordinator * add two Certificate of Achievements to block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * U.S. Transportation School Diploma and Certificate of Investiture * Eight Certificates of Achievement * DA Form 1059 (Service School Academic Evaluation Report) * U.S. Army Warrior Leader Course diploma * Army Good Conduct Medal (AGCM) permanent orders and certificate * Honorable Discharge Certificate * Oath of Reenlistment Certificate * Army Commendation Medal Certificate * Memorandum addressed to Commanding General (CG) * Three letters addressed to CG requesting leniency FACTS: 1. The applicant states: a. Apart from the negative counseling he received for being late to formation, he has no history of misconduct nor has he received an Article 15. He was awarded an Army Good Conduct Medal during his first term of service and received an honorable discharge. He elected to reenlist. b. He contracted HIV while on active duty and was given the best care and managed to reach the remission stage. He encountered complications and change in medication to the strongest available. His time in service has taken a toll on his body and now that he has been dishonorably discharged, both he and his wife, who is also HIV positive, are unable to access or receive the same level of medical care. An upgrade will allow him and his wife to manage their medical issues, even if it means having to pay a lower deductible compared to that of the typical medical insurance. c. The judge recommended confinement as his sentence, but left the characterization of service to be determined by his chain of command and the base commander. Although he raised his concerns/issues during the trial, the trial counsel never took them into consideration. His appellate attorney mentioned previous cases similar to his that received a lesser punishment, which prompted the applicant to request clemency and a review of his trial records and case; however, both were denied. d. While awaiting his trial, the applicant states he had a new chain of command who knew little about him. He was temporary duty enroute when his orders were rescinded, so he returned to Fort Irwin. The applicant was told it was temporary; therefore, he did not sign in to the unit. His commander did not allow him to bring his family or household goods back from Virginia, as he was restricted to post. He was not allowed to participate in physical training because he was awaiting trial. For months, he was assigned to do road guard duties. He was placed in the barracks, with no bedding and other Soldiers were informed of his medical condition and told by the first sergeant to stay away from him. e. His discharge stated he was in Fort Sill, OK at the time of discharge not Fort Irwin, CA, which was his last duty station. No one knew him at Fort Sill; they only knew what his former chain of command told them. It clearly shows how the unit did not pay attention on his discharge paperwork as his MOS is incorrect, his Army Commendation Medal and two certificate of achievements were missing. He would like for his records to reflect his correct MOS and missed awards. He does not want to represent himself as having had an occupation that he knows nothing about. f. Prior to joining the Army, he was a legal resident with a green card. He became an American citizen after joining the Army. He was informed that a dishonorable discharge may result in him losing his citizenship and face the possibility of deportation. He came to this county to enable him to support his family in Africa. Losing his citizenship will let his family down, while deportation would mean that he would have to leave his wife with no help and everything that they had established in the U.S. 2. The applicant provides: a. the U.S. Army Transportation School Diploma which reflects the applicant satisfactorily completed the Transportation Management Coordinator-88N10, 7 February 2011 - 22 March 2011. b. United States Army Chief of Transportation Certificate of Investiture, dated 22 March 2011, reflects the applicant was inducted into the United States Army Transportation Corps under the U.S. Army Regimental system. c. eight Certificates of Achievement, various dates, for: (1) his outstanding support of the Joint Task Force Port Opening (SPOD), 20-26 June 2011; (2) his exemplary service while serving as a movement specialist, 7-11 August 2012; (3) his exemplary performance on his Army Physical Fitness Test, with a score of 272 on 30 March 2012; (4) his outstanding efforts in assisting with the Military Surface Deployment and Distribution Command Soldier/NCO of the Year Best Warrior Competition; (5) successfully completing the requirements of the rigorous Brigade Challenge, 24-25 April 2013; (6) his exceptional achievements in winning the Soldier of the Month Board for the months of June, July, and August 2013; and (7) his exemplary service while serving as a movements specialist in a rapid port opening element. d. DA Form 1059, dated 21 November 2012, reflects the applicant demonstrated the academic potential for selection to higher level schooling/training by successfully achieving and completing all requirements for the Warrior Leader Course. The applicant also provided a copy of his U.S. Army Warrior Leader Course diploma. e. Permanent Order 324-007, dated 20 November 2013, awards the applicant the AGCM (1st Award) for exemplary behavior, efficiency, and fidelity in active federal service for the period of 13 October 2010 - 12 October 2013. The AGCM certificate was also provided. f. Honorable Discharge Certificate reflects the applicant was honorably discharged from the U.S. Army on 7 January 2014. g. Oath of Reenlistment Certificate reflects the applicant reenlisted on 7 January 2014. h. The Army Commendation Medal Certificate, Permanent Orders #190-01, dated 16 July 2014, awarded for his exceptionally meritorious service while serving as a transportation management coordinator from 13 September 2012 to 10 August 2014. i. Memorandum addressed to the CG, dated 15 October 2015, authored by the applicant, requests for clemency. The applicant states: (1) He was sentenced to 28 months in confinement, a dishonorable discharge, forfeiture of all pay and allowances plus a reduction to E-1 for violations of Articles 90, 107, 121, 134, and 128. He takes full responsibility for his criminal actions, offering no excuses as he was appalled and embarrassed by his actions. (2) He voluntarily enrolled in and completed the 5-week victim impact class. In addition, he was taking the sex offender education program, a program for individuals in the uniformed services who are seeking treatment for inappropriate sexual behavior. (3) His family endured an incredible amount of difficulty as a result of his actions. Difficulties include, but not limited to, his spouse not having a job or source of income during his incarceration forcing her to move in with her younger sister, his mother previously exhausting her financial means to pay for him to move to the U.S. in pursuit of a better life and is now unable to afford the necessary medication for her medical ailments, and his younger sister was forced out of school because of her mental instability and inability to pay the school fees. His older brother helps when he can; however, he is stuck fighting for his country against the Al Shabaab terrorists. The applicant can no longer provide financial assistance to his family due to his forfeiture of pay and allowances; thus, he is asking for clemency based on his family's situation. (4) He believes his sentence length and discharge was prejudiced when the trial counsel emphasized that him being HIV positive was a deadly weapon likely to cause death and danger to his victims. The applicant counter disputes this claim citing that his medical records, scientific findings, and his doctor, who is a well-known HIV specialist, testified that his viral load was too low to cause infection. Now his dishonorable discharge will make it hard for him to access medical care for his HIV from the Department of Veterans Affairs (VA). j. Letter addressed to the CG from the applicant's wife, dated 3 November 2015, acknowledges her spouse's error in judgement and the need to hold him accountable for his actions. She states her spouse is her emotional and financial support, the fact that she is recovering from a HIV positive status and requires medical care, and her inability to hold a full-time job. She humbly requests the CG any financial relief in the form of reducing her spouse's sentence in order for him to come home, obtain employment, and provide the critical emotional and financial support she needs. j. Letter addressed to the CG from the applicant's mother, dated 3 November 2015, conveys her sincerest apology for her son's actions. She humbly requested the CG consider her son's family situation. She states, in effect, her son endured a very hard life growing up in Kenya; he always worked hard to take care of her and his siblings; and, the fact that he worked tirelessly to earn a better life for himself and his family. Her son is her sole provider for her living expenses, to include her medical needs. In closing, if her son cannot resume his financial support, her family will lose their home and she will be at risk of lapsing into a diabetic coma. k. Senior Defense Counsel's memorandum addressed to the CG, dated 18 November 2015, requests clemency be granted based on the following: (1) The applicant's dishonorable discharge strips him of any chance of receiving assistance through the VA, and almost two and a half years in jail prohibits him from working toward a future that will enable him to obtain the means necessary to take care of himself medically, as well as his family. (2) Trial counsel mischaracterized the applicant's risk of HIV transmission. An HIV specialist, Dr. C.S., testified that the risk of HIV transmission for vaginal receptive intercourse is about ten per ten thousand exposures, and an undetectable viral load like the applicant's lowers the risk even more. Further stating, the trial counsel disregarded the less than .001 risk of transmission and focused on exaggerating Dr. C.S.'s opinion on the hypothetical extreme. (3) The applicant grew up in a war torn country, where he knew nothing but poverty, death, disease, and adversity his entire life. His abusive father was murdered in 2007, leaving him to take care of his family at a very young age. His mother gave her all in order for the applicant to come to the U.S. in search of a better life for him and his family. The applicant worked hard to provide for his family, to include his mother and siblings living in Kenya. Due to debts and his mother's inability to work, she now faces the possibility of losing her home (4) Despite the misconduct, the applicant's wife who also struggles with her own HIV positive status, has stood by his side, forgiven him, and is working with him towards reconciliation and healing. The applicant's inability to provide financial support compounded with his absence is taking a significant toll on her health. (5) The applicant has accepted full responsibility for his misconduct and, while in confinement, enrolled himself in and completed a five week victim impact class. The applicant is fully committed to rehabilitating himself and becoming a positive contributing member of society. l. Three U.S. Army Legal Services Agency, Defense Appellate Division letters addressed to the applicant are as follows: (1) 10 March 2016, written by the paralegal specialist, notified him of his right to petition the U.S. Court of Appeals for the Armed Forces for a grant of review. Further stating, the 60-day period within which he may petition begins on the day following the date of the letter. (2) 16 March 2016, written by the Appellate Defense Counsel, notified him that after conducting a careful and thorough examination of his court-martial record, counsel submitted his case to the U.S. Court of Appeals for the Armed Forces for consideration including those matters pursuant to United States v. Grostefon. (3) 19 April 2016, written by the Appellate Defense Counsel, notified him that his petition for grant of review was denied by the U.S. Court of Appeals for the Armed Forces. m. U.S. Court of Appeals for the Armed Forces, Order Denying Petition, reflects the applicant's petition for grant of review of the decision of the U.S. Army Court of Criminal Appeals, it is by the Court, was denied on 19 April 2016. 3. Review of the applicant’s service records show: a. The applicant enlisted in the Regular Army on 13 October 2010. b. On 14 July 2015, he was convicted by a general court-martial of four specifications of willfully disobeying a superior commissioned officer, two specifications of making false official statements, one specification of larceny, two specifications of adultery, three specifications of sexual misconduct, and two specifications of assault. The court sentenced him to a dishonorable discharge and confinement for 28 months. c. On 20 November 2015, the convening authority approved the sentence and, except for the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. d. On 2 March 2016, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. e. General Court-Martial Orders Number 134, issued by the Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK on 24 June 2016, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge duly executed. f. The applicant was discharged on 23 September 2016. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). (1) He completed 4 years, 9 months, and 1 day of active military service with lost time from 14 July 2015 to 23 September 2016. (2) His service was characterized as dishonorable and he was assigned the separation code JJD. (3) His DD Form 214 also shows he was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Global war on Terrorism Service Medal, Noncommissioned Officer Professional Development Ribbon, and Army Service Ribbon. 4. By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 5. 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 applicant and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the seriousness of the misconduct which resulted in the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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: 1. 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. 2. Prior to closing the case, the Board noted the administrative notes below by the analyst of record and recommended those changes be made to more accurately depict the military service of the applicant. 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): A review of the applicant’s record shows his DD Form 214 should be amended as follows: * Item 11 (Primary Specialty), delete 68J1O Medical Logistics Sp and add 88N1O Transportation Management Coordinator * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), add the Army Commendation Medal REFERENCES: 1. Army Regulation (AR) 635-200 (Active Duty Separations) sets forth the basic authority for the separation of enlisted personnel, as a result of court-martial. a. 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. b. 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-10 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. e. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. AR 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 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 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. ABCMR Record of Proceedings (cont) AR20170001349 8 1