IN THE CASE OF: BOARD DATE: 23 August 2021 DOCKET NUMBER: AR20210005641 APPLICANT REQUESTS: •Upgrade of his general discharge under honorable conditions to honorable •Restoration of his rank/grade as sergeant (SGT)/E-5 •Permission to personally appear before the Board 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) •DA Form 638 (Recommendation for Award), with Army Review Boards (ARBA)letter of declassification •Department of Veterans Affairs (VA) letter •Bachelor of Science Diploma •Letter regarding applicant's Engineer Intern Certification, with attached certificate •Letter of support •ARBA letter •Extract of applicant's VA medical records FACTS: 1.The applicant did not file within the 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto). However, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states, although he had a great time while in the Army, he wassubjected to multiple traumatic events; he feels, considering the overall quality of hisservice, the punishment he incurred for a single act of misconduct was both severe andunjust. Neither the Army nor his unit made any effort to address the applicant's mentalissues or his uncharacteristically erratic behavior. a. The applicant's erratic behavior started within a year of witnessing traumatic events during an 18-hour battle in Afghanistan that took place on 4 March 2002. (1) The enemy had shot down his team's helicopter as the team attempted to rescue of a Navy Seal and an Air Force PJ (Pararescue Specialist). The applicant saw three of his brothers mutilated by machine gun fire before they could even exit the aircraft. He witnessed two of his teammates "lying at the aircraft ramp, shortly after (seeing) the blood spatter leaving their heads, face down in the bright red blood that surrounded them, contrasted by the white snow that covered the mountain's peak." He heard another teammate breathe his last after a bullet struck him in the side; all the while, bullets cracked between his legs as he grabbed a machine gun and exited, unscathed, from the aircraft. (2) As the battle intensified, the applicant felt fear and thought only of his now former spouse, his 2-year old daughter, and his unborn child, of whom the applicant had learned only weeks after his arrival in Afghanistan. The applicant declares he can still hear the distant mortar tubes as they produced rounds that rained down from the skies, and he recalls the explosions and shrapnel created by the 500-pound bombs our side dropped on the fortified enemy positions, a mere 75 yards from his team's location. The applicant affirms he has had to live with the burden of insurmountable guilt, knowing the seven men who died that day will never see their families again, and from his later realization that some of the rounds he and his teammates fired that day also ripped apart the body of the Air Force PJ. The applicant states he can visualize the "7 lost soul's bodies lying out in (a) row on the snowy mountain top. I still feel the emotions of taking the clothes from their back and wearing them to stay warm." He often re-experiences the sense of selfish relief he felt at the sight of the arriving rescue aircraft, and he recalls his having to sort through the magnitude of what had just occurred as he viewed the bodies of the dead lying motionless on the cold aircraft's floor. b. The applicant relives those images and emotions he describes every day. At the time, he was a young private who did not understand what he was feeling and would not have dared to express his emotions to anyone in his unit for fear they would chastise him; after all, they all saw him as a hero and displaying emotions was a sign of weakness. The applicant goes on to note the first time he even mentioned his feelings to anyone was in 2006. In the interim, his peers, family, and friends all saw him as a hero; his unit promoted him to specialist (SPC)/E-4, awarded him a Bronze Star Medal with "V" Device, and sent him to Ranger School. While in Ranger School, the applicant's second child was born, but he refused to leave the school without first receiving his Ranger Tab; upon his return to his unit, the applicant's leadership promoted him to corporal and assigned him his own team. c. By March 2003, the applicant had deployed with his team to Iraq; they participated in multiple airfield seizures and later helped to rescue a now famous prisoner of war (Private First Class ). Upon his redeployment, the applicant's chain of command promoted him to sergeant (SGT)/E-5 and sent him home on leave. This period of leave would be his first real opportunity to decompress from all that had happened; it was also when the applicant started drinking heavily, and he ended up staying drunk the entire two weeks he was home. The applicant states, "It would seem during the partying that I ingested cocaine and would later test positive after returning back to Savannah. I can't say for sure that I didn't take the drugs, but as I did then, I still maintain I did not knowingly take any illegal drugs." After the unit got his positive urinalysis test results, his leadership told him he could either accept a discharge or face a court-martial; he thought it best, for himself and his family, to just move on and avoid any possibility of receiving an even harsher punishment. d.Following his discharge, the applicant lost his first wife because of his post-traumatic stress disorder (PTSD); he would not receive an actual PTSD diagnosis until 2010, and it came after having "another major breakdown." They brought the applicant to a VA emergency room, where he would begin what is now his 10th year of treatment; there have been many ups and downs, and he still struggles daily with the memories of what occurred on 4 March 2002. e.In closing, the applicant asks the Board to please see and feel things from hisperspective. He points out the events of 4 March 2002 produced two Medal of Honor recipients and multiple Silver and Bronze Star Medal awardees; there have been many books written and documentaries produced, and there are even rumors of a possible movie. Despite this, the applicant asserts, but for some mistakes, the military could have avoided what happened; the applicant contends, if: •reconnaissance of the mountain top had identified the fortified enemypositions •a certain Navy Seal had properly linked into the helicopter •the Operations Center had not sent two additional aircraft that ended up beinghit by enemy fire, and, with that, the needless loss of life (and the potential forthe applicant and his teammates to have entirely avoided this terrible event) f.The applicant draws attention to the foregoing points because he wants the Boardto recognize there were many mistakes made (including his own). He nonetheless maintains, "I have been punished for my mistake and done right by them," and he additionally notes, since leaving the Army, he has never been accused or convicted of a drug offense, and he had become an upstanding citizen. In 2012, and with the VA's help, the applicant went back to school and, in May 2017, he graduated with a degree in engineering. He currently works as a Systems Engineer in his hometown, and his job provides an essential service to his community. The applicant asks the Board to allow him and his family's legacy to be "void of the stigmatic cloud that remains over me." 3.The applicant provides his DD Form 214, documentation showing the award of hisBronze Star Medal with "V" Device, a VA letter reflecting his combined 70 percentdisability rating, and a diploma and certificate affirming his engineering degree andsubsequent internship. In addition, the applicant submits a letter of support from hisemployer, which describes the applicant as an asset to the organization who has demonstrated a willingness to learn and shows an ability to manage projects and people effectively. Upon ARBA's request, the applicant sent the Board an extract of his VA medical records, which affirm his PTSD diagnosis. 4.The applicant's service records show: a.On 13 September 2000, the applicant enlisted into the Regular Army for 4 years;he was 20 years old. Following the completion of One-Station-Unit-Training, and the award of military occupational specialty 11B (Infantryman), orders assigned the applicant to Fort Stewart, GA, and he arrived on or about 5 May 2001. b.On 29 December 2001, the applicant deployed to Afghanistan and redeployed, on5 April 2002. The applicant provides the first page of a DA Form 638 showing his company commander recommended him for the award of the Bronze Star Medal with "V" Device; the accompanying citation reads: "Private First Class [applicant], United States Army, distinguished himself by exceptional meritorious service while serving as a M240B Machine Gunner during Operation ENDURING FREEDOM from 29 December 2001 to 5 April 2002. During this period [applicant's] valorous actions, in particular during a battle on 4 March 2002, contributed immeasurably to the tremendous success of the task force. [Applicant] immediately exited the aircraft and suppressed the enemy with his M240B Machine Gun. He was able to suppress the fortified enemy bunker while on a four-man element assaulted the position. [Applicant] played an integral role in the entire operation by providing suppression on enemy positions to facilitate the capture of the high ground, the defeat of two enemy counterattacks, and the consolidation of friendly wounded. The gallantry displayed by [applicant] during 18 hours of combat is in keeping with the highest standards for valor." c.On 8 March 2003, the applicant deployed to Iraq, and he redeployed on 22 April2003. Effective 1 May 2003, the applicant's chain of command promoted him to SGT; on 19 June 2003, the Commander, 75th Ranger Regiment awarded the applicant the Army Commendation Medal for meritorious service during Operation Iraqi Freedom for the period 8 March until 22 April 2003. d.On 13 June 2003, the applicant's company commander issued an order toconduct a 100 percent urinalysis of the applicant's company upon the company's return from block leave. On 1 July 2003, the applicant provided a urine sample that came back positive for cocaine. e.On 24 July 2003, the applicant accepted nonjudicial punishment (NJP) underArticle 15, Uniform Code of Military Justice (UCMJ) for having wrongfully used cocaine at some point between 23 June and 1 July 2003. The associated DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows the imposing officer was the applicant's battalion-level commander; the form additionally indicates the following: (1)The applicant affirmed the imposing officer had afforded him the opportunity toconsult with counsel, and the applicant elected not to demand trial by court-martial, have a closed hearing without a person speaking in his behalf, and to present matters personally in defense, extenuation, and mitigation. (2)Following the applicant's presentation of matters in defense, extenuation, andmitigation, the imposing officer found the applicant guilty of the charge, and directed the applicant's reduction in rank from SGT to SPC, along with a forfeiture of $794 for 2 months (suspended), 45 days' extra duty and 45 days' restriction (suspended). The applicant chose not to file an appeal. f.On or about 16 December 2003, the applicant's commander advised him, viamemorandum, that he was initiating separation action against the applicant, under paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander indicated the basis for this action was the applicant's wrongful use of cocaine. The commander further stated his intent to recommend the applicant for a general discharge under honorable conditions, but the final decision rested with the separation authority. g.On 17 December 2003, after consulting with counsel, the applicant acknowledgedcounsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He opted not to submit statements in his own behalf. h.On 30 December 2003, the separation authority approved the commander'sseparation recommendation and directed the applicant's general discharge under honorable conditions; on 13 January 2004, orders discharged the applicant accordingly. His DD Form 214 shows he completed 3 years, 4 months, and 1 day of his 4-year enlistment contract. The form additionally listed the following awards: •Bronze Star Medal with "V" Device •Army Commendation Medal (2nd Award) •National Defense Service Medal •Army Service Ribbon •Combat Infantryman Badge •Expert Infantryman Badge •Parachutist Badge •Ranger Tab 5.AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before theBoard; however, the request for a hearing may be authorized by a panel of the Board orby the Director of ABCMR. 6.The applicant essentially argues, considering the overall quality of his service, thepunishment he incurred for a single act of misconduct was both severe and unjust. Hefurther contends he was suffering from combat-related PTSD, and neither the Army norhis unit made any effort to address his mental issues and/or his erratic behavior. a.During the applicant's era of service, commanders could initiate separation actionunder paragraph 14-12c, AR 635-200 when Soldiers had committed a serious offense for which the UCMJ's maximum punishments authorized a punitive discharge. The regulation deemed the abuse of illegal drugs a serious offense. Per the Manual for Courts-Martial in effect at the time, Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included a punitive discharge as a maximum punishment. The regulation indicates an under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. b.In reaching its determination, the Board can consider the applicant's petition, hisservice record, and his statements in light of the published guidance on equity, injustice, or clemency. 7.With regard to the applicant's request to restore his rank/grade of SGT/E-5, theapplicant's reduction resulted from the applicant's acceptance of NJP, not his separationaction. The governing regulation for NJP proceedings, in effect at the time, was AR 27-10 (Military Justice). a.Paragraph 3-18 (Notification and Explanation of Rights) stated the imposingcommander was to ensure the Soldier received notification of the commander's intent to dispose of the Soldier's alleged misconduct using NJP, and that the Soldier received a signed copy of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ). •in the presence of the commander, the Soldier was allowed to personally presentmatters in defense, extenuation, or mitigation •the imposing commander was not bound by the formal rules of evidence beforecourts-martial, and could consider any matter reasonably considered to berelevant •punishment was not to be imposed unless the commander was convincedbeyond a reasonable doubt the Soldier committed the offense •the Soldier had the right to file an appeal b.Paragraph 3-19b (6) (Rules and Limitations – Reduction in Grade) stated thegrade from which reduced must have been within the promotion authority of the imposing commander; for the purposes of the regulation, the imposing officer had "promotion authority" within the meaning of Article 15(b) if that officer had general authority to appoint to the grade from which reduced. Per AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, field grade commanders in units authorized a commander in the grade of lieutenant colonel or higher (i.e. battalion commanders) had promotion authority for grades SGT and staff sergeant. c.Paragraph 3-28 (Setting Aside and Restoration). NJP punishment could be setaside, in whole or in part, when the commander who imposed the punishment, a successor-in-command, or a superior authority (such as the ABCMR) decided to set aside the punishments imposed. (1)When an NJP was set-aside, the result was the restoration of the rights,privileges, and/or property affected by the associated punishment. (2)The basis for any set-aside action was the determination that, under allcircumstances of the case, the imposition of the NJP or the NJP's punishment resulted in a clear injustice. •"clear injustice" meant that there existed an unwaived legal or factual error thatclearly and affirmatively injured the substantial rights of the Soldier; an examplewould be when new evidence was discovered that unquestionably showed theSoldier did not commit the alleged misconduct •clear injustice did not include the fact the Soldier's performance of service hadbeen exemplary subsequent to the punishment, or that the punishment mighthave a future adverse effect on the retention or promotion potential of the Soldier •a Soldier's uncorroborated sworn statement did not constitute a basis to supportthe setting aside of punishment d.To restore the applicant's rank/grade to SGT/E-5, the Board must find that theimposing officer's determination of guilt resulted from an unwaived legal or factual error that clearly, affirmatively, and substantially injured the applicant's rights. (1)The evidence of record indicates, in accordance with AR 27-10, the imposingcommander afforded the applicant the opportunity to consult with counsel and the applicant exercised his rights. The applicant affirmed he had had the opportunity to consult with counsel, and he personally presented matters in defense, extenuation, and mitigation in a closed hearing. (2)After reaching a determination that the applicant was guilty, the imposingcommander reduced the applicant from SGT to SPC. AR 27-10 limits reductions only to those commanders who have the authority to promote in the respective grade; per AR 600-8-19, the imposing officer had promotion authority for the rank of SGT. 8.MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Longitudinal Technology Application (AHLTA) & Longitudinal Technology Application (AHLTA) & BOARD DISCUSSION: 1.The applicant's request for a personal appearance was carefully considered. In thiscase, the evidence of record was sufficient to render a fair and equitable decision. As aresult, a personal appearance before the Board is not necessary to serve the interest ofequity and justice in this case.2.After reviewing the application, all supporting documents and the evidence foundwithin the military record, the Board determined that partial relief was warranted. TheBoard carefully considered applicant’s contentions, military record, regulatory guidanceand published Department of Defense guidance for liberal consideration when reviewingdischarge upgrade requests. The Board reviewed and considered the conclusion andrecommendation of the medical advisor. One possible outcome was to deny all reliefbased upon the seriousness of the misconduct. However, the majority of the Boardconcurred with the medical review finding sufficient evidence of mitigating circumstancesto warrant upgrading the applicant's characterization of service to Honorable.3.As a result of liberal consideration only relating to characterization of service and notrank restoration, however, the Board also determined that restoration of the applicant'srank was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented is sufficient to warrant arecommendation for relief. As a result, the Board recommends that all Department ofthe Army records of the individual concerned be corrected by reissuing the applicant aDD Form 214 for the period ending 13 January 2004 showing in: •item 24 (Characterization of Service): Honorable•item 25 (Separation Authority): No change•item 26 (Separation Code): No change•item 27 Reentry (RE) Code: No change•item 29 (Narrative Reason for Separation): No change Microsoft Office Signature Line... 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 militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so. 2.AR 635-200, in effect at the time, set forth the basic authority for the separation ofenlisted personnel. a.Paragraph 3-7a stated an honorable discharge was separation with honor.Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge in cases where the Soldier's subsequent honest and faithful service, completed over a greater period, outweighed his/her disqualifying entries. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b.Chapter 14 (Separation for Misconduct) established policy and prescribedprocedures for separating members for misconduct. Commanders could initiate separation action when they determined a Soldier had committed serious misconduct, and could clearly establish rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, for which the UCMJ authorized a punitive discharge for the same or similar offense. (1)The regulation deemed the abuse of illegal drugs to be a serious offense, andthe UCMJ showed a punitive discharge as an available maximum punishment for wrongful use of controlled substances; however, the regulation stated relevant facts might mitigate the nature of the offense. The regulation required the separation processing of all Soldiers against whom charges were not referred to a court-martial authorized to impose a punitive discharge, or for whom separation action under chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure) was not contemplated. (2)An under other than honorable conditions character of service was normallyappropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. 3.The Manual for Courts-Martial, Table of Maximum Punishments, in effect at the time,showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances such ascocaine) included a punitive discharge as a punishment. 4.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive toDischarge Review Boards (DRBs) and Board for Correction of Military/Naval Records(BCM/NRs) when considering requests by Veterans for modification of their dischargesdue in whole or in part to: mental health conditions, including Post Traumatic StressDisorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment.Boards are to give liberal consideration to Veterans petitioning for discharge relief whenthe application for relief is based in whole or in part to those conditions or experiences.The guidance further describes evidence sources and criteria and requires Boards toconsider the conditions or experiences presented in evidence as potential mitigation formisconduct that led to the discharge. 5.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. 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 maybe warranted based on equity or relief from injustice. This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable 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 (to include that provided by an applicant), policychanges, 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 anupgraded character of service granted solely on equity, injustice, or clemency groundsnormally should not result in separation pay, retroactive promotions, and payment ofpast medical expenses or similar benefits that might have been received if the originaldischarge had been for the revised reason or had the upgraded servicecharacterization. 6.AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before theBoard; however, the request for a hearing may be authorized by a panel of the Board orby the Director of ABCMR. 7.AR 27-10, in effect at the time, prescribed the policies and procedures pertaining tothe administration of military justice and implemented the Manual for Courts-Martial. a.Paragraph 3-18 (Notification and Explanation of Rights) stated the imposingcommander was to ensure the Soldier received notification of the commander's intent to dispose of the Soldier's alleged misconduct using NJP, and that the Soldier received a signed copy of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ). •in the presence of the commander, the Soldier was allowed to personally presentmatters in defense, extenuation, or mitigation •the imposing commander was not bound by the formal rules of evidence beforecourts-martial, and could consider any matter reasonably considered to berelevant •punishment was not to be imposed unless the commander was convincedbeyond a reasonable doubt the Soldier committed the offense •the Soldier had the right to file an appeal b.Paragraph 3-19b (6) (Rules and Limitations – Reduction in Grade) stated thegrade from which reduced must have been within the promotion authority of the imposing commander; for the purposes of the regulation, the imposing officer had "promotion authority" within the meaning of Article 15(b) if that officer had general authority to appoint to the grade from which reduced. Per AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, field grade commanders in units authorized a commander in the grade of lieutenant colonel or higher (i.e. battalion commanders) have promotion authority for grades SGT and staff sergeant. c.Paragraph 3-28 (Setting Aside and Restoration). NJP punishment can be setaside, in whole or in part, when the commander who imposed the punishment, a successor-in-command, or a superior authority (such as the ABCMR) sets aside punishments imposed on the individual. (1)When an NJP is set-aside, the result is the restoration of the rights, privileges,and/or property affected by the associated punishment. (2)The basis for any set-aside action is the determination that, under allcircumstances of the case, the imposition of the NJP or the NJP's punishment resulted in a clear injustice. •"clear injustice" means that there existed an unwaived legal or factual error thatclearly and affirmatively injured the substantial rights of the Soldier; an examplewould be when new evidence is discovered that unquestionably shows theSoldier did not commit the misconduct alleged in the NJP •clear injustice does not include the fact the Soldier's performance of service hasbeen exemplary subsequent to the punishment, or that the punishment may havea future adverse effect on the retention or promotion potential of the Soldier •a Soldier's uncorroborated sworn statement does not constitute a basis tosupport the setting aside of punishment //NOTHING FOLLOWS//