BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20170005310 APPLICANT REQUESTS: a. to be issued his Purple Heart Certificate. b. correction of his Army Military Human Resource Record (AMHRR) to remove all derogatory documents related to his reduction in grade and his involuntary discharge. Specifically, correction of his record to show – * he was not charged with missing movement by design * he was not court-martialed for missing movement * he was not reduced in rank to private (PV1) * he was not involuntarily discharged on 11 July 2008 * his characterization of service through 11 July 2008 was honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Board for Correction of Military Records (ABCMR) Record of Proceedings for Docket Number AR20120004996, dated 18 October 2012 * U.S. Court of Federal Claims Motion, Applicant v. The U.S. Court of Federal Claims), filed * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 16 June 2016 * Grade Determination, dated 22 August 2016, with allied documents FACTS: 1. The Board will not consider the portion of the applicant's requests pertaining to issuing him a Purple Heart Certificate, as this item will be addressed through an administrative correction. ? 2. Counsel states: a. The ABCMR denied the applicant's previous request for reinstatement to active duty and a review of his disabilities by a Medical Evaluation Board (MEB) in Docket Number AR20120004996. The applicant subsequently filed suit in the U.S. Court of Federal Claims, which overturned the ABCMR's decision, and directed the Army to submit the applicant's record to a MEB. The Army complied, and after consideration by the PEB, the applicant was medically retired with a 50-percent disability rating, effective 12 July 2008, the day after his separation. The Army has placed the applicant on the Permanent Disability Retired List. The Army also determined that the applicant should be retired in the rank of specialist (SPC)/E-4, rather than private (PV1)/E-1, the grade he held at discharge. b. As the Board is aware, the Army brought charges against the applicant pursuant to a Special [sic] Court-Martial. Upon the advice of Army Trial Defense counsel, the applicant pled guilty and was discharged, effective 11 July 2008, with a service characterization of under other than honorable conditions. c. The Court of Federal Claims determined that the applicant suffered from medical conditions that mandated his referral to a MEB by February 2007, and the Army failed to make proper referral. The PEB medically retired the applicant due in large part to his diagnosis of multiple sclerosis. The applicant suffered from this condition when he was ordered to deploy to Iraq for the third time. His refusal to deploy led to his court-martial. However, as the result of the PEB decision, Orders 222-0005, dated 9 August 2016, directed the applicant's retirement, effective 11 July 2008, the date on which he originally was separated. d. The applicant's original argument to this Board was correct. His refusal to deploy was legal because Army regulations required his referral to a MEB, and because he was not physically fit to deploy. Because he correctly refused deployment, his court- martial should be declared null and void, and all records and references to the court- martial removed from his record. e. His medical retirement also requires the ABCMR to void and remove the DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting his involuntary separation under other than honorable conditions on 11 July 2008. The applicant cannot be medically retired and involuntarily separated on the same date. Moreover, the under other than honorable conditions characterization must be removed. The applicant is entitled to an honorable characterization of service. f. Through his federal court action, and the Army's remedial actions on remand, the applicant prevailed on every claim he originally presented to the ABCMR. He should never have been required to file suit, at taxpayer expense. His claims to the ABCMR were extraordinarily clear and thoroughly supported by the evidence of record. 3. The record shows the applicant enlisted in the Regular Army on 9 September 2004. 4. He served in Iraq from 10 August 2007 to 20 December 2007. The highest grade held was SPC/E4. 5. His record of indiscipline includes numerous counseling statements for missing movement to Iraq, being a flight risk, failing to take proper care of spouse and dependents, suspension of Class A privileges, threatening his family, and being given a no contact order in regards to his family. 6. On 31 January 2008, charges were preferred against the applicant for missing the movement (aircraft) through design which he was required to do in the course of duty to move on or about 23 December 2007, while at Munich, Germany. 7. On 2 May 2008, a summary court-martial found the applicant guilty of the charge listed above. He was sentenced to 28 days of confinement and reduction to PV1/E-1. 8. As a result of his court-martial conviction, the applicant was subsequently involuntarily discharged in the rank of PV1/E-1 on 11 July 2008, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c. His service was characterized as under other than honorable conditions. 9. On 30 January 2015, the Army Discharge Review Board (ADRB) informed the applicant that after careful consideration, the Board determined he was properly and equitably discharged. Accordingly, his request to change the characterization of service and reason for separation was denied. 10. The ABCMR denied the applicant's request for reinstatement on active duty for evaluation by a MEB and restoration of his rank on 18 October 2012. 11. On 21 November 2013, the applicant appealed the ABCMR's decision to the U.S. Court of Federal Claims, which resulted in his case being remanded to the Secretary of the Army for referral of the applicant to a MEB. 12. The applicant underwent an informal Physical Evaluation Board (PEB) on 10 June 2016 at Joint Base Lewis McChord, Washington. The PEB found him physically unfit and recommended a disability rating of 50 percent and a permanent disability retirement. The applicant concurred with the findings on 16 June 2016. 13. Subsequently, his discharge orders were revoked. Orders 222-0005, dated 9 August 2016, issued by the Installation Management Command-Europe (IMA- Europe), retired the applicant due to physical disability on 11 July 2008, and placed him on the Temporary Disability Retired List (TDRL), with an effective date of 12 July 2008. 14. Order D228-32, dated 15 August 2016, issued by the PDA, removed the applicant from the TDRL, effective 11 October 2009, and permanently retired in him the grade of PV1. 15. On 15 August 2016, the applicant's initial DD Form 214 was voided and he was issued a new DD Form 214 showing he was retired due to temporary disability on 11 July 2008. His grade and rank is shown as PV1/E-1. The characterization of his service is listed as honorable. 16. On 22 August 2016, after conducting a review of the applicant's AMHRR (including his summary court-martial reduction from E-4 to E-1) and PEB proceeding, the Grade Determination Review Board found that the highest grade in which the applicant served satisfactorily for the purpose of computation of disability retirement pay was grade E-4. 17. Orders 243-0008, dated 30 August 2016, issued by IMA-Europe, amended the previously amended Orders 222-0005, dated 9 August 2010, to show his retired grade as SPC, with a date of rank 11 July 2008. 18. The PDA issued Order 245-2, dated 1 September 2016, amending Orders D228- 32, dated 15 August 2016, to show the applicant's retired grade as SPC. 19. His record is void of a DD Form 215 correcting the grade and rank on his DD Form 214, issued on 15 August 2016, to show SPC/E-4. 20. A copy of the voided DD Form 214, along with associated Case Files for Approved Separations, is filed in the performance section of the applicant's AMHRR. 21. Regulatory guidance states the DD Form 214 will reflect the conditions and circumstances that existed at the time the records were created. 22. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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 23. 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: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board agreed that it is not empowered to set aside the applicant's conviction, but the Board found it would be appropriate to direct removal of all records of the court- martial from his AMHRR. The Board agreed it can also exercise clemency by correcting his record to show he was not reduced to E-1 and issue him a new DD Form 214 showing he held the rank/grade of SPC/E-4 at the time of his retirement for disability. The Board determined it would also be appropriate to remove the records of his initial involuntary discharge from his AMHRR as those records have been overcome by events and no longer serve any purpose. 3. The Board noted that the record has already been corrected to show his service was characterized as honorable and this portion of the applicant's request requires no action. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * Removing from his Army Military Human Resource Record any documents related to his trial by court-martial * Removing from his Army Military Human Resource Record any documents related to his administrative separation under the provisions of Army Regulation 635-200, chapter 14, to include the voided DD Form 214 * Restoring his active duty rank/grade to specialist/E-4 with his original date of rank of 14 July 2006 and paying him any monies he is due as a result of this correction * Reissuing his DD Form 214 for the period ending 11 July 2008 to show he was retired for temporary disability in the rank/grade of specialist/E-4 with a date of rank of 14 July 2006 (do not include the statement regarding continuous honorable active service) 2. The Board concurred with the correction described in Administrative Note(s) below. 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): The applicant's records contain Permanent Orders 307-01, dated 2 November 2012, issued by the Army Review Boards Agency awarding him the Purple Heart for wounds received in action on 29 September 2007. This is sufficient evidence to issue the applicant the corresponding Purple Heart Certificate. ? REFERENCES: 1. Title 10, United States Code, 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 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the AMHRR. a. Chapter 2 governs the composition of the AMHRR and states the AMHRR is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document(s) becomes a permanent part of that file. The document(s) will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. b. Table B-1 (Authorized Documents) of this regulation authorizes the following documents to be filed in the AMHRR – (1) Case files for approved separations. (2) Copy 2 of the DD Form 214 (Certificate of Release or Discharge from Active Duty), including forms issued by order of the Army Discharger Review Board, and DD Form 215 (Correction of DD Form 214). (3) Orders (promotion, reduction, revocations, amendments to separations) (4) Court martial orders (general, special, summary) file in the “Performance” folder when there is an approved finding of guilty on at least one specification. If all approved findings are not guilty, file the order in the “Restricted” folder. If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, remove all related orders from the “Performance” folder and transfer them to the “Restricted” folder. (5) Record of Trial by Summary Court-Martial file this form together with the DD Form 458 (Charge Sheet) and the memorandum, opinion, or letter of legal review. File in the “Performance” folder where there is an approved finding of guilty on at least one specification. Also file supplemental actions in the “Performance” folder. If all approved findings are not guilty, file the form and all related documents in the “Restricted” folder. If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental action, remove all related documents from the “Performance” folder and transfer them to the “Restricted” folder. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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// ABCMR Record of Proceedings (cont) AR20170005310 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1