ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 June 2019 DOCKET NUMBER: AR20170004280 APPLICANT REQUESTS: in effect, an upgrade of is discharge, and restoration of his former rank/grade of staff sergeant (SSG)/E-6. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge From Active Duty) * DD Form 214C (Certificate of Release or Discharge from Active Duty (Continuation Sheet)) * Department of Veterans Administration (VA) Medical Records, dated 2 March 2017 FACTS: 1. The applicant states he had combat PTSB prior to the events for which he was falsely accused. He states the issue was never addressed even though he was actively seeing a psychiatrist. The preliminary hearing found him to be innocent of the charge of sexual assault, but guilty of adultery to which his punishment would have been at the battalion level, yet the commanding general wanted to push the punishment forward base on guidance from then President Obama to prosecute all sexually involved cases. 2. The applicant provides his VA Medical Records detailing his documented medical history on file. 3. A review of the applicant's service record shows: a. Having had prior service, the applicant enlisted in the Regular Army on 23 September 2007. He was advanced to SSG/E-6. b. On 10 June 2013, while in Korea, he was convicted by a general court-martial of: * one specification of committing a sexual act upon Specialist (E-4) X. at or near U.S. Army Garrison Humphreys, Republic of Korea, while she was sleeping, on or about 11 August 2012 * one specification of wrongfully having sexual intercourse with a woman not his wife, and the sexual intercourse was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces, at or near U.S. Army Garrison Humphreys, Republic of Korea, on or about 11 August 2012 c. The court sentenced him to reduction to E-1, forfeiture of all pay or allowances (deferred on 24 June 2013) confinement for 30 months, and a bad conduct discharge. d. The convening authority approved the sentence and except for the bad conduct discharge, ordered it executed on 11 April 2014. e. The applicant’s record was void of the Record of Trial and appellate review. However, based on data maintained by the U.S. Army Court of Criminal Appeals, the Court affirmed the findings and sentence on 7 October 2014. f. The U.S. Court of Criminal Appeals for the Armed Forces denied the applicants petition for review on 11 March 2015. g. The applicant was discharged on 28 April 2015. 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), paragraph 3-11, with a bad conduct discharge. h. His DD Form 214 shows he completed 14 years, 2 months, and 5 days of active military service with lost time from 10 June 2013 to 24 March 2014. i. He was awarded or authorized in Items 13 of his DD Form 214: * Iraq Campaign Medal with 2 campaign stars * Army Commendation Medal (4th Award) * Army Achievement Medal (3rd Award) * Meritorious Unit Commendation * Army Good Conduct Medal * Army Reserve Component Achievement Medal (3rd Award) * National Defense Service Medal 2nd Award) * Armed Forces Expeditionary Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Humanitarian Service Medal * Non Commissioned Officer Professional Development Ribbon (3rd Award) * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with M Device (2nd Award) * Combat Action Badge * Parachutist Combat Badge with bronze service star * Expert Marksmanship Badge with Rifle Bar * Certificate of Achievement (2nd Award) 4. A medical advisory opinion was received from the Army Review Boards Agency (ARBA) Senior Medical Advisor/Psychologist in the processing of this case (see attached). In summary, the Agency psychologist was asked to determine the following: a. Does the applicant’s available medical record reasonably support PTSD, or other behavioral health conditions, existed at the time of the applicant’s military service? b. Did these conditions fail medical retention standards in accordance with AR 40-501 (Medical Services – Standards of Medical Fitness), warranting a separation through medical channels? c. Is the condition(s) a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military? d. In accordance with Title 10 USC, Section 1177, was the required medical exam, which includes a behavioral health component, conducted prior to administrative separation? e. Any additional information deemed appropriate. 5. The psychologist opined based on a thorough review of available medical records and systems: a. The applicant did meet medical retention standards in accordance with AR 40-501, Chapter 3, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the Applicant’s era of service. b. The applicant’s mental-health conditions were considered at the time of his discharge from the Army, and he received psychiatric treatment during his confinement. c. A review of available documentation did not discover evidence of a mental-health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. 6. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comments. He was given 30 days to provide a rebuttal or any comments, but did not respond within the time allowed. 7. By regulation, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 8. By regulation, when a soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 9. The Board should consider the applicant’s submissions 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 determined that relief was not warranted. Based upon the seriousness of the misconduct and the finding of the medical advisory stating that a mitigating nexus between the applicant’s misconduct and his mental health was not discovered, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. Additionally, because a reduction to Private E1 is automatically executed when a bad conduct discharge is given, the Board again found no error or injustice which would warrant making a change to the applicant’s pay grade. 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. 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 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. Court-Martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. 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. 3. AR 40-501, chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those that: a. Significantly limit or interfere with the Soldier’s performance of their duties. b. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military service. c. May compromise the health or well-being of other Soldiers. d. May prejudice the best interests of the Government if the individual were to remain in military service. 4. AR 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that the military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an evaluation of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEB). The MEB will recommend referral to a physical evaluation board those Soldiers who do not meet retention standards. 5. AR 635-200, in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states that a general discharge is a separation from the Arm y 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 3-11 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 6. 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 the application of their equitable relief authority. In determine 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) AR20170004280 6 1