IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20220007628 APPLICANT REQUESTS, in effect, a telephonic/video appearance before the board and reconsideration of his previous request to: * upgrade his bad conduct characterization of service to honorable * change his narrative reason for separation to secretarial authority, with appropriate separation program designator * change his reentry (RE) code to RE-1 (qualified for enlistment) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * legal brief * character references (25) * academic records * service records FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20210010934 on 1 February 2022. 2. Counsel states, in effect: a. The applicant was unjustly and erroneously separated from the U.S. Army with a bad conduct (BCD). The applicant seeks to remedy this injustice through the ABCMR. The applicant wishes this petition to be reviewed and in the interest of equity, fairness, and justice, and that the requested relief be granted. The applicant's discharge was inequitable and has served its purpose. b. The appeal is based on three errors (1) the underlying basis of his separation was procedurally defective at the time of discharge (2) the applicant should receive clemency and (3) the discharge, is inequitable now. c. By statute Title 10, U.S. Code, Section 1552, the Secretary of the Army is authorized to correct errors or remove injustices from any military record of their respective service. Not only is the Secretary authorized, he is also obligated, not only to properly determine the nature of any error or injustice, but also to take such corrective action as will appropriately and fully erase such error or compensate such injustice. To conduct this review, the Secretary has adopted regulation Title 32, Combined Federal Regulation (CFR), Section 865.100 establishing the BCMR. When a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its mandate. The Secretary and his boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief, Roth v. United States. Federal Courts review final decisions under the Administrative Procedures Act (APA), Baker v. Department of Marine Corps. Congress exercises oversight functions for the Discharge Review Boards (DRB) and Congress requires that the Boards properly exercise their function. To help ensure the independence of the DRBs in the exercise of their responsibilities, Congress mandated the Boards have independent legal and medical advisors. To ensure this process is transparent, Congress mandated that the Board disclose virtually ALL communications with anyone outside the Agency to the applicant if that communication pertains directly to the applicant's case or has a material effect on the applicant's case. The Board does not engage in a "de novo" review of the applicant's discharge, Van Bourg v. Nitze. The BCMR will grant a discharge upgrade based upon Propriety, Equity, and an Injustice. The applicant carries the burden of proof in demonstrating by a preponderance of the evidence the discharge was improper or inequitable. In order to prove inequity or impropriety, the applicant must overcome the presumption of regularity in the conduct of governmental affairs. This is a rebuttable presumption, but the burden is on the applicant to provide substantial credible evidence of a divergence from that regularity. Inequity exists when the discharge was inconsistent with disciplinary standards at the time, or when the quality of the member's service and capability to perform military service make the discharge unfair. Factors for consideration of the quality of service include the service member's ranks, awards and decorations, letters of commendation or reprimand, combat service, acts of merit, length of service, prior military service, courts martial and other forms of discipline, and records of unauthorized absence. The Board is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made", and the APA, "sets forth the full extent of judicial authority to review executive agency action for procedural correctness", FCC. v. Fox Television Stations, Inc. In addition, the APA requires the Court to hold "unlawful and set aside" any Board action, findings, or conclusions that are, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law", Kreis v. Secretary of Army, see also Title 5, U.S. Code, Section 706(2(A). The Secretary of the Army has adopted the procedures directed by Title 32, CFR, Sections 865.100 - 865.126, which govern the Boards activities. The chair of the Board is directed to ensure that the applicant receives a full and fair opportunity to be heard, and to certify the record of the proceedings. The Board members are instructed to review all applications that are properly before them to determine the existence of error or injustice, and if persuaded that material error or injustice exists, to direct changes in military records to correct the error. d. When the statute or governing regulation refers to "errors" they are referring to factual or legal errors that can disadvantage a service member. The Board's objective is to examine the PROPRIETY and EQUITY of the applicant's discharge and to effect changes if an injustice exists. The standard of review and the underlying factors which aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. Equity considerations include an evaluation of matters such as age, educational level, and aptitude scores whether the individual met normal military standards of acceptable behavior. Impropriety may be found when a prejudicial error of fact, law, procedure, or discretion occurred. Impropriety may also be found if an expressly retroactive and favorable change in law or policy has been made. e. In addition, under the Guidance of the former Secretary of Defense, (Hagel Memorandum), the Board has extensive directives related to post-traumatic disorder (PTSD) and traumatic brain injury (TBI). These issues should be granted liberal considerations before the Boards, especially when they are service connected. f. On 3 September 2014, the Secretary of Defense issued a memorandum providing guidance to the Board for Correction of Army Records (Secretary Hagel Memo) as it considers petitions brought by veterans claiming PTSD with other than honorable conditions discharge. This includes a comprehensive review of all materials and evidence provided by the applicant. A memorandum providing further clarifying guidance was issued on 25 August 2017, by the Undersecretary of Defense for Personnel and Readiness (USD P&R Memorandum). This policy guidance is intended to ease the application process for veterans who are seeking redress and assists the Board in reaching fair and consistent results in these cases. The guidance also mandates liberal waivers of time limits, ensures timely consideration of petitions, and allows for increased involvement of medical personnel in Board determinations. g. The applicant requests that this derogatory information be removed from his record. The applicant asks that this appeal through the ABCMR be given the utmost scrutiny. The success of the appeal and future actions by the ABCMR will have a significant impact on his ability to receive proper benefits and recognition. The applicant will continue to fight this derogatory information up through the Secretary of the Army. 4. The applicant enlisted in the Regular Army on 9 November 2015. The highest grade he held was private first class/E-3. 5. The applicant is listed as a subject of an investigation recorded on a Law Enforcement Report (LER) (1st Corrected Final), dated 23 January 2017. This report shows the applicant was investigated by the Fort Campbell Provost Marshall Office for the offense of assault consummated by battery against his spouse on four occasions between 23 January 2015 to 10 September 2016. The result of the investigation was a protective order. 6. A Federal Bureau of Investigation Identification Record, dated 7 April 2017, captured the same information found in the LER listed above. In addition, this form shows the applicant was referred for counseling/concern related to drugs and alcohol, family advocacy, and mental health. 7. On 1 January 2018, the applicant was convicted by a general court-martial that convened at Fort Campbell, KY. General Court-Martial Order Number 19, issued by Headquarters, Fort Campbell, KY, dated 8 August 2018, is not available for review. 8. On 8 August 2018: a. The Staff Judge Advocate (SJA), Fort Campbell, KY made a recommendation in the applicant's General Court-Martial (GCM). The recommendation was presented in an addendum which shows the applicant and his counsel each submitted one-page memorandums for consideration. The applicant's counsel made no claims of legal error. The applicant, through his counsel, requested "for his conviction to be vacated." Additionally, the applicant and his counsel requested the Commander, Fort Campbell, KY, consider a lesser punishment, so that his reputation would not be sullied as he moved on in life. The SJA found clemency was not warranted and recommended the sentence be approved, except for the part of the sentence extending to a BCD, and the commander order the sentence executed. b. Having considered the Result of Trial, SJA recommendation, matters submitted by the applicant and his counsel, and the Record of Trial, the GCM convening authority approved the SJA's recommendation. c. The GCM convening authority approved the sentence and except for the BCD, order the sentence executed. 9. On 19 December 2018, the U.S. Army Court of Criminal Appeals made administrative corrections related to the location of one offense and changed the date the sentence was adjudged to 31 January 2018. 10. GCM Order Number 74, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK on 31 May 2019, directed, the sentence having been finally affirmed (as corrected by U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 19 December 2018), and Article71(c) of the UCMJ having been complied with, the BCD portion of the sentence be executed. 11. The applicant was discharged on 14 June 2019, under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separation), Chapter 3, as a result of court-martial. His DD Form 214 shows he was credited with 3 years, 7 months, and 6 days of net active service this period. His DD Form 214 contains the following entries in: * Item 18 (Remarks) – Member has not completed first full term of service * Item 24 (Character of Service) – Bad Conduct * Item 25 (Separation Authority) – AR 635-200, Chapter 3 * Item 26 (Separation Code) – JJD * Item 27 (Reentry Code) – 4 * Item 28 (Narrative Reason for Separation) – Court-Martial 12. The applicant did not provide medical records showing a diagnosis of or treatment for a behavioral health condition. 13. The applicant provides: a. Character References from friends, family, and coworkers which attest to the applicant's positive attitude, work ethic, integrity, community service, professionalism, character, and love of music. These references show the applicant worked as a car salesman, a deputy sheriff, and he was pursuing a career in healthcare. b. Service records, academic records, and volunteer documents which include enlistment contracts, military orders, training certificates, college transcripts, community service hours, security clearance application, entrance physical examination, a birth certificate, and marriage certificate (several duplicate documents). 14. 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. 15. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting, through counsel, reconsideration of his previous request for an upgrade of his bad conduct discharge (BCD) to honorable, change of narrative reason for separation to secretarial authority, and change of his reentry code to RE-1. The applicant contends, through counsel, that he was erroneously separated from the Army with a BCD, that the discharge was inequitable and has served its purpose. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following. 1) The applicant enlisted into the Regular Army on 9 November 2015. 2) A Law Enforcement Report dated 23 January 2017 shows the applicant was investigated by the Fort Campbell Provost Marshall’s Office for assault and battery against his wife on 4 occasions between 23 January 2015 and 10 September 2016. 3) On 1 January 2018, the applicant was convicted by a general court-martial that convened at Fort Campbell, KY. 4) He was discharged on 14 June 2019, under the provisions of Army Regulation 635-200, Chapter 3, as a result of court-martial. c. The electronic military medical (AHLTA), VA electronic medical record (JLV), and the ROP were reviewed. A review of AHLTA showed the applicant had a significant history of BH, FAP, and ASAP treatment during his time in service. A review of the records showed significant overlap in the treatment timeline across the three clinics. In an effort to ensure the reader can more easily following the treatment delivered within each clinic, the writer detailed treatment and timeline under the following heading: EBH-1, FAP, ASAP. EBH-1 Records suggest the applicant first engaged for BH-treatment at the Fort Campbell, KY, EBH-1 clinic on 17 May 2016 for a BH-triage visit. The applicant reported “probably struggling with anxiety and depression for most of [his] life” but reported today because he and his wife thought it best. He reported depressed mood, irritability, worry, excessive sleep, anger, and marital discord. He was diagnosed with Irritability and Anger and scheduled for an intake. During the intake appointment on 31 May 2016 complained of marital discord, a belief that his wife lies to him and hides things from him, and that being with her magnifies his symptoms. He also reported chronic lower back pain and concerns regarding meeting physical fitness demands. He was diagnosed with Adjustment disorder with depressed mood and Marital Discord, and scheduled outpatient treatment. Between 31 and 8 August 2016 the applicant attended three BH follow up appointments (11 July 2016, 4 August 2016, 8 August 2016). During the 11 July 2016 encounter he complained of low mood, no energy, sleep problems, anhedonia, and isolation. He noted the symptoms increased over the past week and were associated with his wife moving back to Georgia and threatening to divorce him. During the 4 August 2016 encounter he reported his wife had returned and “things are bad”. He contended that he involved his command as his wife was “messed up”. He reported not being sure if he wanted to remain in the marriage. During his 8 August 2016 encounter the applicant reported improved mood and reduced symptoms he and his wife had reportedly improved communications and she agreed to find employment, which would help relieve financial stressors. The applicant next engagement in the EBH-1 clinic was on 23 January 2017, after being informed he was under investigation for claims of domestic violence (DV). He contended being wrongly accused and reported increased stress and anxiety related to the investigation. On 8 February 2017 the was referred to the Partial Hospitalization Program at Cumberland Hall, after telling his treating provider the applicant was becoming overwhelmed by the circumstances. He denied suicidal and homicidal ideation. The applicant remained in treatment at the EBH-1 and PHP program through 24 January 2018. His active diagnoses were Adjustment Disorder and Other Specified Problems Related to Psychosocial Circumstances. FAP Records show that the Family Advocacy Program (FAP) received a report on or about 1 December 2016 related to the applicant being the accused of a domestic abuse situation. The applicant’s command was notified on 2 December 2016 and the FAP intake was scheduled for 5 December 2016. The 5 December intake did not contain the specific of the incident that led to the referral, however, a review of the ROP showed the applicant’s wife filed her initial statement to the Fort Campbell Provost Marshall’s Office, alleging domestic abuse, during the same timeframe. The applicant attended FAP individual and group sessions between 5 December 2016 and 14 November 2017, at which time the FAP case was closed. It should be noted that throughout FAP treatment the applicant denied allegations of abuse, while simultaneously stating that the text and email messages his wife provided as evidence were only made public after he refused to provide her 1000 dollars to start a home-based business. The working diagnosis during the period of FAP engagement was Other Specified Problems Related to Psychosocial Circumstances. ASAP The applicant self-referred to ASAP on 6 January 2017 and reported concerns of increased alcohol consumption since September 2016. He reported drinking when lonely and to get rid of negative thoughts, like his current marital situation. He reported consuming 3 to 4 drinks several times per week, with a maximum consumption of 6 during any one occasion. He was diagnosed with Alcohol Abuse, uncomplicated and was enrolled into ASAP. The applicant attended weekly individual and group sessions through 9 May 2017. His ASAP enrollment was considered successful upon termination and his progress was noted as fair, with a recommendation to retain. His terminating diagnosis was Alcohol Abuse, mild. d. A review of JLV was void of the applicant receiving any treatment at the VA and he does not have a service-connected disability. e. The applicant contends, through counsel, that he was unjustly and erroneously separated from the U.S. Army with. A review of the evidence does not support this contention. Records show the applicant was found guilty by general-court martial for physical abuse of his spouse and summarily discharged under provisions of AR 635 – 200, Chapter 3, as a result of court-martial. Although the applicant had BH-related diagnoses of Adjustment Disorder, Alcohol Abuse, and Other Specified Psychosocial Circumstances, assault is not natural sequela of either diagnosis and does not mitigate his misconduct. After reviewing the available evidence, it is the opinion of this advisor that the applicant’s separation was proper and equitable. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant had diagnoses of Adjustment Disorder, Alcohol Abuse, and Other Specified Psychosocial Circumstances 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. Records show the applicant was found guilty by general-court martial for physical abuse of his spouse and summarily discharged under provisions of AR 635 – 200, Chapter 3, as a result of court-martial. Although the applicant had BH-related diagnoses of Adjustment Disorder, Alcohol Abuse, and Other Specified Psychosocial Circumstances, assault is not a natural sequela of the diagnoses and neither diagnosis affects an individual’s ability to distinguish between right and wrong and adhere the right. As such the diagnoses do not mitigate the applicant’s misconduct. After a review of the available evidence, it is the opinion of this advisor that the separation characterization was proper and equitable. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's mental health claim and the review and conclusions of the ARBA Medical Advisor. The Board found the evidence of post-service achievements and letters of reference provided by the applicant insufficient in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a mental health condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20210010934 on 1 February 2022. 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, U.S. Code, 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 601-210 (Personnel Procurement-Regular Army and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to persons completing their term of active service, who are considered qualified to reenter the U.S. Army, qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to persons separated from last period of service with a non- waivable disqualification; ineligible for enlistment 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. At the time, this regulation prescribed the separation code "JJD" as the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, based on court-martial. Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 4. AR 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Chapter 3 provided that an enlisted person would be given a BCD 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. 5. 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. 6. 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. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 8. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. The applicant has the burden of proof. The Board is not an investigative body. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007628 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1