ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20170005029 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Post Trial Recommendation * DA Form 4430 (Department of the Army Report of Result of Trial) * Petition and Letters requesting clemency * Testimony * Certificates of Training * Letters of Support * Letters from Medical Clinic * Self Authored Statement 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 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: a. He would like the Board to carefully consider upgrading his discharge to an honorable, so he can be able to access VA services, especially medical to assist in treating his PTSD and to increase his employability and his ability to support his family. He strongly feels he deserves an upgrade because he served in Iraq from 2005 to 2006. Not only was he dealing with the effects of PTSD from his deployments, the stress of an upcoming deployment and martial problems, but in June of 2006 during a field training exercise, 4 Soldiers including himself were struck by lightning. They were all treated at the hospital. On October 2006, he was involved in a verbal argument with his now ex- wife and it became physical. They were both young kids who were scared, distressed, fighting psychological and martial stress. He acknowledges his part in the incident and a. faced the repercussions head on. After he was released from prison, he and his ex-wife separated, unable to make their marriage work. He found himself lost more than ever. He couldn’t keep a job and still couldn’t trust anyone and continued to feel paranoid about situations and people. He had no ambition to do anything and just wanted to be left alone. He was depressed and felt like a failure. He felt his soul was sucked out of him and he was on auto pilot. He constantly felt like giving up. He was broken and headed down the wrong path. b. In the beginning of 2013, he reconnected with his ex- girlfriend.. She became pregnant with twins and he was married again on 2 May 2015. In 2016, they had a third daughter. His wife has changed his life dramatically. He accepted a positon at a company and has been there for 5 years. He has been seeing a local nurse practitioner who specializes in mental health which has helped him improve. He respectfully disagrees with the letter from the Clinical Psychologist (ARBA) that asserts that PTSD did not contribute to the loss of control/violence the day of the incident with his ex-wife. He has included additional paperwork from his current provider for review. He states he was never a violent person and have had no further incidents since his ex-wife. He was not the same when he returned from Iraq and the anger and stress that he had without proper treatment unfortunately turned to aggression. He has become a productive citizen, and a better man. He wants to change his characterization of discharge which would enable him to access the VA’s vast resources to help with his PTSD symptoms and continue with the progress that he has already made. He wants to be able to apply for a VA loan for a home for his family. He served in Iraq but does not get treated like a veteran and it tears him apart. One of the most important outcomes for an upgrade would be pride, honor and respect for him. He request an upgrade to honorable based on all the positive changes that he has made in the last 12 plus years. 3. The applicant provides: a. Documents from his post trial, results of trial, petition and letters for clemency. b. Two certificates of completion of Anger Management and Stress Management. c. Six letters of support from: * his previous Battalion Commander (X___) that he served under in Iraq which states that the applicant served under him with honor and distinction during one of the most dangerous missions in Iraq. The applicant had no misconduct during the time he served under him. He doesn’t take the act of upgrading a discharge lightly but based on his personal knowledge of the applicant during their time together in combat, his understanding of his action in the years, following, and his current positive direction, he strongly recommends his discharge be upgraded. * his first line supervisor (X___) in Iraq, stating the incredible psychological pressure and physical threat they endured daily. He states the applicant’s * courage under fire, discipline, and honorable conduct of duty were second to none. He also states the applicant had no misconduct during his two years under his supervision and recommends an upgrade of his discharge. * a Soldier (X___) that attended basic training with the applicant which states he is a good guy and a great Soldier. He feels the applicant has paid for his actions and based on no previous misconduct, he deserves an upgrade. * his wife and people that know him personally, which speaks to his character and describes him as a loving husband, father, a hard worker d. Eight letters from the psychiatric nurse practitioner, who treated the applicant e. A self-authored letter outlining his case. 4. A review of the applicant’s service record shows: a. He enlisted in Regular Army on 6 January 2004. b. He served in Iraq from 31 January 2005 to 14 January 2006. c. On 31 August 2007, he was convicted by general court martial of: * one specification of unlawfully grabbing X___’s (wife) legs with his hands and attempt to throw her to the ground on or about 16 October 2006 * one specification of unlawfully grabbing W.K’s hair with both of his hands and pulling her towards the steps in their quarters; unlawfully striking X___ in the face with his closed fist; and unlawfully grabbing X___’s hair with his hand and while holding onto her hair, unlawfully slam her head to the floor on or about 16 October 2006 d. The court sentenced him to be reduced to the grade of PVT/E-1, to be confined for five months, and to be discharged with a Bad-Conduct Discharge. e. General Court-Martial Order Number 28, dated 31 August 2007 approved the sentence and except for the part of the sentence extending to a Bad-Conduct Discharge, ordered the sentence executed. The automatic forfeiture of all pay and allowances was deferred effective 13 June 2007 and the deferments are terminated on this date. f. General Court-Martial Order Number 294, dated 30 October 2008, finally affirmed the sentence to reduction to the grade of Private/E-1, confinement for 5 months, and a Bad-Conduct Discharge. The automatic forfeitures required by Article 58b, UCMJ, were deferred effective 13 June 2007 until 31 August 2007. The provisions of Article 71(c) had been complied with, the Bad-Conduct Discharge would be duly executed. That portion of the sentence extending to confinement had been served. a. g. He was discharged on 13 March 2009. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 10 months and 10 days of net active service. 5. By regulation, a soldier 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. 6. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 7. The board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents and evidence in the records. After reviewing the application, the applicant's statement and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered his record of service to include deployment and the reason for his separation. The Board considered the review and opinion of the medical advising official, as well as the applicant's response with supporting documents. The Board concurred with the advising official's conclusion that PTSD did not mitigate the serious and violent nature of offenses that led to his separation. The Board considered the applicant's letters of reference and his statement regarding post- service achievements in support of a clemency determination. The Board found insufficient mitigation to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the characterization of service the applicant received at the time of separation was not in error or unjust. 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. 9/14/2019 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. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted person a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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 (General Discharge) states 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 3-11 (Bad Conduct Discharge) states a soldier 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. 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 form 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 the 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 1. 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.