IN THE CASE OF: 

		BOARD DATE: 28 July 2023

		DOCKET NUMBER: AR20220009292


APPLICANT REQUESTS:

*	Change the characterization of service from general to honorable
*	Change the narrative reason for separation from misconduct to something more 
favorable

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge)
*	Letter from the Army Discharge Review Board (Group C)
*	Acadiana Criminalistics Laboratory – Laboratory Examination
*	Sheriff Interview/Detective Division with Victim
*	List of Witness Subpoena
*	Applicant Statement
*	Request for Public Records
*	Police Officer’s Investigative Narrative
*	Police Evidence and Photographs
*	Applicant’s taped Statement
*	State of Louisiana – XX Judicial District Court Record of Trial
*	United States Court of Appeals for the Fifth Circuit decision
*	Applicant’s DNA Test Results
*	U.S. Army Criminal Investigation Command (CID) Report of Investigation

FACTS:

1.  Standard of Review. When arriving at its findings and making its determinations, the 
Board shall review the petition for requested relief independent from any previous 
petitions submitted to the Army Discharge Review Board or the Army Board for 
Correction of Military Records (ABCMR).

2.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) 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.
3.  The applicant states he has evidence that the State of Louisiana prosecutors hid 
evidence and witness(s) in their criminal case against him to set him up for a crime that 
he did not commit. The allegation was that he forced an adult woman to give him oral 
sex. He was convicted by the State, and that was the reason he was discharged from 
the Army. In his appeal to the civilian court, the applicant provided evidence that he did 
not attack the young woman in April 1999 along with a court ruling that since he has 
already served his sentence, he could not seek to overturn an already served 
conviction. The provided DNA and statement show he never confessed to committing 
the crime and the DNA test showed a key part of the alleged victim’s story was not true. 
He also showed where the State hid evidence from him while giving it to the CID and 
other State police officers. They told him this evidence did not exist. The discovered 
“envelope” shows his lawyers and he, seeking various pieces of evidence that the State 
claimed not to have, later discovered that the State was lying and hiding evidence to 
convict him of a crime he did not commit, and based on this conviction, he was 
discharged from the Army. The documents he is submitting with this application show 
that the State prosecutor committed gross misconduct in his criminal case. He did not 
receive these documents until 2017 and was not previously disclosed while he was in 
Korea. He was bullied and sexually harassed by Sergeant [Name]. The sergeant’s 
behavior in Korea included bullying and sexual harassment. They were on the same 
team and spent time together. The verbal bullying and sexual harassment that he is 
now detailing in his attached affidavit made him deeply distrust authority figures and 
made him psychologically weak to the point of taking a guilty plea when he was not 
guilty. 

4.  Review of the applicant’s service records shows: ‘

	a.  The applicant enlisted in the Regular Army (RA) on 27 March 1997. He held 
military occupational specialty 14S, Avenger Crewmember. The applicant served in 
Korea from 22 July 1997 to 18 November 1998.

	b.  On 12 April 1999, the Sheriffs Office, [Name of Parish], Louisiana, received a call 
of sexual assault. An investigation led to warrant being issued and the applicant was 
arrested on 14 April 1999. He was arraigned, booked, photographed, and set for trial. 

	c.  On 18 February 2000, State of Louisiana court documents show that the 
applicant entered into a plea bargain agreement. The Court advised the applicant of his 
rights and he acknowledged that he understood these rights and wished to waive them. 
He entered a plea of “Guilty” to Count 2 Aggravated Oral Sexual Battery. The State 
dismissed Count 1 Aggravated Burglary. The applicant was convicted and sentenced to 
a 10 year sentence with possibility of parole. 

	d.  On 29 March 2000, the applicant’s immediate commander notified the applicant 
of his intent to initiate separation action against him under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-5 
(Conviction by Civil Court) based on his conviction by Civil Court. The reason(s) for the 
proposed separation are as follows: On 18 February 2000, in the [Number] Judicial 
District Court of [Name] Parish, Louisiana, he pled guilty to the offense of Aggravated 
Oral Sexual Battery. His sentence was 10 years at hard labor without benefit of parole, 
probation, or suspension of sentence. 

	e.  On 29 March 2000, the applicant acknowledged receipt of the notification of 
separation action. He indicated he was advised by his consulting counsel of the basis 
for the contemplated action to separate him for conviction by Civil Court, under AR 635-
200, Chapter 14, Paragraph 14-5, and its effects; of the rights available to him; and the 
effect of any action taken by him in waiving his rights. He understood that that if he had 
less than six years of total active and reserve military service at the time of initiation of 
separation and he is being considered for separation for reason of misconduct under 
AR 635-200, Chapter 14, Paragraph 14-5, he is not entitled to have his case heard by 
an administrative separation board, unless he is being considered for a discharge Under 
Other than Honorable Conditions. He waived submitting a statement and requested 
representation (telephone). He further acknowledged he understood that he may expect 
to encounter substantial prejudice in civilian life if a general discharge under honorable 
conditions or an under other than honorable conditions discharge is issued to him. 

	f.  On 5 May 2000, the applicant’s immediate commander initiated separation action 
against the applicant under the provisions of AR 635-200, chapter 14-5, for misconduct-
conviction by civilian authorities with a general, under honorable conditions discharge. 
The reason for the immediate commanders proposed actions were that the applicant 
was convicted by civilian court on or about 18 February 2000 for aggravated oral sexual 
battery.

	g.  On 8 May 2000, his intermediate commander recommended separation under 
the provisions of AR 635-200, chapter 14-5, for misconduct-conviction by civilian 
authorities with a general, under honorable conditions discharge.

	h.  On 8 May 2000, the separation authority approved separation under the 
provisions of AR 635-200, chapter 14-5, for misconduct with an under other than 
honorable conditions discharge. 

	i.  On 22 May 2000, Headquarters, 5th Personnel Service Battalion, Fort Polk 
published Orders 143-0008, ordering his discharge from active duty effective 7 June 
2000.

	j.  The applicant was discharged from active duty on 7 June 2000. His DD Form 214 
(certificate of Release or Discharge from Active Duty) shows that he was discharged 
under the provisions of AR 635-200, chapter 14 (Misconduct) with a general, under 
honorable conditions characterization of service (Separation Code JKB, RE Code 3). He 
completed 2 years and 10 months of active duty service with 130 days of lost time. 

5.  On 15 November 2022, the U.S. Army Criminal Investigation Command provided a 
copy of the Report of Investigation (ROI) – Final, dated 17 June 1999. [This ROI is the 
same as the ROI provided by the applicant in this application]. 

6.  On 29 November 2022, the applicant provided a rebuttal to the CID ROI. He stated, 
in effect: 

*	The CID officer admitted that the oral sex was consensual
*	The State was hiding the CID ROI
*	There was evidence hidden from him and his lawyer by the State of Louisiana 
*	The State hid the clothing that he was wearing during the alleged sex act
*	The CID report states that the victim alleged that he had a knife pressed into her 
side; this was a lie
*	The CID report contains speculations 
*	The CID report proves his innocence and that the State lied 


7.  MEDICAL REVIEW:

    a.  Background: The applicant is requesting a reconsideration of his previous 
requests to upgrade his under honorable conditions (general) discharge to honorable, 
and that his narrative reason for separation be changed from misconduct to something 
more favorable. The applicant contends mental health and sexual harassment were 
mitigating factors in his mental state when he took a plea deal, which led to his 
separation.  
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Below is a brief summary of information pertinent to this 
advisory: 

*	The applicant enlisted in the Regular Army 27 March 1997. 
*	The applicant served in Korea from 22 July 1997 to 18 November 1998.
*	On 18 February 2000, State of Louisiana court documents show that the 
applicant entered into a plea bargain agreement. He entered a plea of “Guilty” to 
Count 2 Aggravated Oral Sexual Battery. The State dismissed Count 1 
Aggravated Burglary. The applicant was convicted and sentenced to a 10-year 
sentence with possibility of parole. 
*	On 29 March 2000, the applicant’s immediate commander notified the applicant 
of his intent to initiate separation action against him under the AR 635-200, 
chapter 14-5 (Conviction by Civil Court) based on his conviction by Civil Court.
*	The applicant was discharged on 7 June 2000 under AR 635-200, chapter 14 
(Misconduct) with a general, under honorable conditions characterization of 
service (Separation Code JKB, RE Code 3).

    c.  The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor 
reviewed this case. Documentation reviewed included the applicant’s completed DD 
Form 293, ABCMR Record of Proceedings (ROP), DD Form 214, documents from his 
service record and separation, as well as CID report of investigation, and numerous 
additional supporting documents related to police, detective, witness, and victim records 
(please see ROP for full list). The VA electronic medical record and DoD health record 
were reviewed through Joint Longitudinal View (JLV), though minimal information was 
available. Lack of citation or discussion in this section should not be interpreted as lack 
of consideration.  

    d.  Please see ROP, application and supporting documents for full history. In brief 
summary, the applicant asserts that he had been bullied and sexually harassed by a 
sergeant while he was in Korea. The applicant also described experiencing trauma 
symptoms secondary to a significant flood experienced while he was stationed in Korea 
(he reported nightmares of the sights and smells from the flood, dead animals and 
people). This trauma and the harassment and bullying led to him being psychologically 
weak and wanting to just “give up,” to the point of taking a plea deal for a case he was 
not guilty of. The applicant argues, and provides evidence, that he was set up, lied to, 
and evidence was hidden during his prosecution. 
    e.  There are no electronic health records (EHRs) from his time in service. No 
additional records were provided to support his assertion of trauma or psychological 
distress during his time in service. The applicant’s EHR since his time in service holds 
no mental health records and no indication he’s engaged in care through the VA. 
Through review of Joint Legacy Viewing, this applicant did have “Community Health 
Summaries and Documents” available, though there was no record of a mental health 
diagnoses, nor mental health records. The applicant did not provide any additional 
medical or psychiatric records in support his assertion of psychiatric distress or trauma. 
    f.  It is the opinion of the Agency Behavioral Health Advisor that there is insufficient 
evidence, outside of self-report, that the applicant had a mitigating experience and 
condition during his time in service. However, per Liberal Consideration guidance, his 
contention is sufficient to warrant the Board’s consideration.
Kurta Questions:
    (1)  Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? Yes. He asserts a mitigating experience (sexual 
harassment) and psychological distress. 
    (2)  Did the condition exist, or experience occur during military service? Yes. The 
applicant does assert the mitigating experience occurred during his time in service, as 
well as psychological distress/concerns.  
    (3)  Does the condition or experience actually excuse or mitigate the discharge? No. 
The applicant contends he had an experience (sexual harassment, trauma of a flood) 
and condition (psychological distress; described trauma but did not label his alleged 
concerns) that mitigated his discharge, and per Liberal Consideration, his contention is 
sufficient to warrant the board’s consideration. However, no mental health records were 
in his supporting documents or EHR, and the applicant did not supply any records to 
support his assertion. Most importantly, the applicant’s misconduct/charge he pled to is 
not considered behaviors consistent with the natural history and sequelae of trauma or 
a trauma response secondary to sexual harassment. There is no nexus between 
aggravated Oral Sexual Battery and/or Aggravated Burglary (this charge was dropped) 
and his reported experience/symptoms. In addition, these symptoms and experience of 
sexual harassment do not typically affect one’s ability to distinguish right from wrong 
and act in accordance with the right. 
    g.  In regard to the applicant asserting the harassment and bullying led to him being 
psychologically weak and wanting to just “give up,” hence taking the plea deal… In an 
extreme psychological state, it is possible that someone may act incongruent to their 
best interest. However, there is no evidence of the psychologically weakened state 
outside of self-report. Testimony in the supporting docs speak to him being viewed, 
even by his lawyer at the time, as of sound mind and judgement. Again, per Liberal 
Consideration, his contention is sufficient to warrant the board’s consideration. 

BOARD DISCUSSION:

After reviewing the application, all supporting documents and the evidence found within 
the military record, the Board determined that relief not warranted. The Board carefully 
considered the applicant’s request, supporting documents, evidence in the records and 
published DoD guidance for consideration of discharge upgrade requests. The Board 
considered the frequency and nature of the misconduct and the reason for separation.  
The Board found insufficient evidence of in-service mitigating factors to overcome the 
misconduct and, although the applicant states that he has evidence in support of his 
request, he did not provide any on his own behalf for consideration by the Board.  
Based on a preponderance of evidence available for review, the Board determined that 
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 Board determined 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, U.S. 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 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 635-200 (Personnel Separations-Enlisted Personnel, now called 
Active Duty Enlisted Administrative Separations) set forth the basic authority for the 
separation of enlisted personnel. Chapter 14 established policy and prescribed 
procedures for separating members for misconduct. Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and 
convictions by civil authorities. Action would be taken to separate a member for 
misconduct when it was clearly established that rehabilitation was impracticable or was 
unlikely to succeed. A discharge under other than honorable conditions was normally 
appropriate for a Soldier discharged under this chapter. However, the separation 
authority may direct a general discharge if such is merited by the Soldier’s overall 
record.  

	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.  

3.  Army Regulation 635-5-1 (Separation Program Designator), in effect at the time, 
states Separation Code JKB is the appropriate code to assign to enlisted Soldiers 
separated involuntarily under chapter 14 of AR 635-200 due to civil conviction. 

4.  On 3 September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations, and mitigating factors, when taking action on applications from former 
service members administratively discharged under other than honorable conditions, 
and who have been diagnosed with PTSD by a competent mental health professional 
representing a civilian healthcare provider in order to determine if it would be 
appropriate to upgrade the characterization of the applicant's service.

5.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole, or in part, to:  mental health conditions, including PTSD; TBI; 
sexual assault; sexual harassment.  Boards were directed to consider Veterans 
petitioning for discharge relief when the 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 to consider the conditions or experiences presented in 
evidence as potential mitigation for that misconduct which led to the discharge.

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 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 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.

//NOTHING FOLLOWS//
BCMR Record of Proceedings (cont)	AR20220009292


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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