IN THE CASE OF: BOARD DATE: 17 May 2023 DOCKET NUMBER: AR20220009617 APPLICANT REQUESTS: an upgrade to his characterization of service from under other than honorable conditions to honorable or under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Army Review Boards Agency (ARBA) Case Tracking Systems (ACTS) online application, 12 August 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty). 14 August 1997 * DA Form 638 (Recommendation for Award), 19 December 2004 * General Court-Martial Order Number 15, Headquarters, 8th Theater Sustainment Command, Fort Shafter, HI, 22 December 2011 * DA Form 4430 (Department of the Army Report of Result of Trial), 15 December 2011 * Order C4-128-008, U.S. Army Installation Command, Pacific Region, Schofield Barracks, HI, 7 May 2012 * 2 DA Form 31 (Request and Authority for Leave), 20 June 2012 and 7 August 2012 * General Court-Martial Order Number 2, Headquarters, Department of the Army, Washington D.C., 18 January 2013 * DD Form 214, 1 February 2013 * unofficial college transcript (The University of Texas at Tyler), 24 December 2021 * Department of Veteran Affairs (VA) Internal Post-Traumatic Stress Disorder (PTSD) disability benefits questionnaire, 5 July 2022 * letter, VA, summary of benefits, 20 July 2022 FACTS: 1. 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. 2. The applicant states, at the time of and up to the incident he as court martialed, he was suffering from severe undiagnosed and untreated PTSD, suicidal thoughts, and plans to commit suicide, all stemming from actions in combat in 2004. He was scared because he did not know what his mind was going through or if he should get help. During his off-duty time he dove severely into alcoholism and made every attempt to not be alone because that was when his conditions and demons worsened. He relived incidents in combat daily and because he was alone at his duty station, constantly deploying, and had no family or friends, and no support system or anyone to confide in. Due to the stigmas that PTSD and mental have on an officer's career, he knew the system would not allow him to receive mental health without his chain of command knowing and affecting future opportunities. Because of this, he made attempts to find friendships and support in anyone that he could, who would allow him to continue to drink heavily, while trying to distance himself from his PTSD, depression, and suicidal thoughts. This ended up proving to be the worst decision of his life when he should have just sought help. He never played a victim's role, and he took full responsibility for his actions. Given that he was suffering from severe undiagnosed or treated mental illnesses, which he still suffers today, he feels his under other than honorable conditions discharge and an end to his military career was not justified and egregious. 3. The applicant enlisted in the regular Army on 21 June 1995 and subsequently reenlisted on 31 July 1997. He was honorably discharged on 14 August 1997 to enter the Reserve officer training program at The University . 4. On 17 May 2002, after having previous enlisted service in the United States Army Reserve, he accepted an appointment as a Reserve Commissioned Officer of the United States Army and was subsequently ordered to active duty for a period of 4 years and was assigned to Schofield Barracks, Hawaii as an Infantry Officer. 5. His record shows foreign service in Afghanistan from 28 April 2004 to 4 April 2005 and in Kuwait from 22 September 2006 to 21 July 2007. 6. General Court Martial Order Number 15, dated 22 December 2011, shows the applicant was convicted of the following offenses/specifications: a. Charge 2, Article 120 (Rape and sexual assault generally): (1) Specification 2: the applicant did, on or about 15 November 2009, wrongfully commit indecent conduct, to wit: placing his penis in the mouth of In The Presence of First Sergeant (1SG) and Sergeant (SGT) . (2) Specification 3: the applicant did, on or about 15 November 2009, wrongfully commit indecent conduct, to wit: placing his penis in the mouth of SGT in the presence of 1SG . b. Charge 3, Article 133 (Conduct Unbecoming an Officer), Specification: the applicant did, or about 15 November 2009, harass SGT , by placing repeated calls to her on the telephone wherein he called her a "nasty slut" and stated in enraged voicemails, "you're starting to piss me off, answer your fucking phone," or words to that effect, which conduct was unbecoming of an officer and gentleman. c. Charge 4, Article 134 (General Article): (1) Specification 1: the applicant did, on or about 1 August 2009 and on or about 15 November 2009, knowingly fraternize with SGT , an enlisted person, on terms of military equality, by engaging in an ongoing sexual relationship, playing a sexual game and socializing together in violation of the customs of the United States Army that officers shall not fraternize with enlisted persons on terms of equality. (2) Specification 2: the applicant did, between on or about 1 August 2009 and on or about 15 November 2009, knowingly fraternize with 1SG , an enlisted person, on terms of military equality, by sharing living accommodations, playing a sexual game and socializing together in violation of the customs of the United States Army that officers shall not fraternize with enlisted persons on terms of equality. d. The sentence, which was adjudged on 15 December 2010. His punishment was to be reprimanded; forfeiture of $1500.00 pay per month for 3 months; and to be dismissed from service. e. On 22 December 2011, the sentence was approved and, except for that part of the sentence extending to a dismissal from the service, will be executed. 6. Orders C4-128-008, dated 7 May 2012, shows the applicant was issued permanent change of station orders assigning him to the Personnel Control Facility, Personnel Support Battalion, Fort Sill Oklahoma, with a reporting date of 20 June 2012. 7. DA Form 31, dated 7 August 2012, shows the applicant was placed on indefinite involuntary excess leave beginning 7 August 2012. 8. General Court Martial Order Number 2, dated 18 January 2013, shows on 19 June 2012 the United States Army Court of Criminal Appeals affirmed the findings and the sentence as approved by the convening authority. The conviction became final on 24 August 2012, when the appellant's petition to the United States Courts of Appeals for the Armed Forces was denied. The applicant was ordered to be dismissed from service at midnight 1 February 2013. 9. The applicant's DD Form 214 shows he was discharged on 1 February 2013, under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 5-17, by reason of court-martial, in the rank/grade of Captain/O-3, and his service was characterized as Under Other Than Honorable Conditions (Separation Code JJD, Reentry Code NA). He completed 10 years, and 2 days of net active service.. Additionally, his DD Form 214 reflects the following personal awards and decorations: * Bronze Star Medal * Joint Service Commendation Medal * Meritorious Service Medal (2nd award) * Army Commendation Medal * Army Achievement Medal * Meritorious Unit Commendation * National Defense Service Medal * Afghanistan Campaign Medal with 2 bronze campaign stars * Global War on Terrorism Service Medal * Overseas service ribbon (3rd award) * Military Outstanding Volunteer Service Medal * Combat Infantryman Badge * Parachutist Badge * Air Assault Badge 10. He provides: a. an unofficial copy of his college transcripts and a DA Form 638, dated 19 December 2004, showing Permanent Orders Number 66-154, dated 7 March 2005, awarded him the Bronze Star Medal for service in Afghanistan from 21 April 2004 to 21 April 2005. b. VA Initial PTSD Disability Benefits Questionnaire, which shows, on 5 July 2022 the applicant underwent an examination and was diagnosed with PTSD, depression, major depressive disorder, severe alcohol abuse, with total occupational and social impairment; but he was not diagnosed with a traumatic brain injury. The doctor noted the applicant met multiple criteria and had multiple symptoms of PTSD that were related to his service in Afghanistan. c. VA letter dated 20 July 2022 shows the applicant has one or more service- connected disabilities and a 100% disability evaluation. 11. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board抯 15-year statute of limitations. 12. The applicant provided argument or evidence the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 13. AR 600-8-24 paragraph 5-17a states, an officer convicted and sentenced to dismissal as a result of General Court Martial proceedings will be processed pending appellate review of such proceedings. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade to his characterization of service from under other than honorable conditions to honorable or under honorable conditions (general). He asserts he was experiencing PTSD and other mental health conditions that mitigated his misconduct. 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 in the Regular Army on 21 June 1995. On 17 May 2002, he accepted an appointment as a Reserve Commissioned Officer of the United States Army and was ordered to active duty; 2) The applicant deployed to Afghanistan from 28 April 2004 to 4 April 2005 and to Kuwait from 22 September 2006 to 21 July 2007; 3) Before a general court-martial on 22 December 2011, the applicant was found guilty of two specifications of rape and sexual assault, one specification of conduct unbecoming of an officer, and two specifications of fraternization. The court sentenced him to be reprimanded, forfeiture of pay for 3 months, and to be dismissed from service; 4) The applicant was discharged on 1 February 2013, under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 5-17, by reason of court- martial, in the rank/grade of Captain/O-3, and his service was characterized as Under Other Than Honorable Conditions (Separation Code JJD, Reentry Code NA). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant抯 military service and medical records. The VA抯 Joint Legacy Viewer (JLV) was also examined. d. The applicant asserts he was experiencing undiagnosed and untreated PTSD, depression, and suicidality related to his combat deployment. There is no evidence the applicant endorsed any behavioral health symptoms while on active service. A review of JLV provided evidence that applicant has been diagnosed with PTSD, depression, suicidality, and alcoholism. He is 100% service-connected for PTSD since 4 April 2022. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his discharge. However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board抯 consideration. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing mental health conditions including PTSD that contributed to his misconduct. He has been diagnosed with mental health conditions including PTSD by the VA. 2. Did the condition exist, or experience occur during military service? Yes, there is sufficient evidence the applicant experienced mental health conditions including PTSD while on active service. 3. Does the condition or experience actually excuse or mitigate the discharge? No, there is evidence applicant was experiencing mental health conditions including PTSD while on active service. However, there is no nexus between his mental health conditions including PTSD and the applicant抯 misconduct of rape, sexual assault, conduct unbecoming of an officer, and fraternization given that: 1) these types of misconduct are not part of the natural history or sequelae of his diagnosed mental conditions; 2) his diagnosed mental health conditions do not affect one抯 ability to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant抯 petition, available military records and medical review, the Board concurred with the medical opinion finding there is evidence applicant was experiencing mental health conditions including PTSD while on active service. However, there is no nexus between his mental health conditions including PTSD and the applicant抯 misconduct of rape, sexual assault, conduct unbecoming of an officer, and fraternization. The Board considered the applicant抯 mental health conditions including PTSD while on active service. However, the Board found insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. 2. The Board agreed these types of misconduct are not part of the natural history or sequelae of his diagnosed mental conditions; and his diagnosed mental health conditions do not affect one抯 ability to distinguish right from wrong and act in accordance with the right. Based on liberal consideration, the Board found relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 600-8-24, in effect at the time, prescribes policies governing the transfer and discharge of Army officer personnel. Paragraph 1-23 states the types of administrative and judicial discharges/characterization of service. a. Honorable characterization of service, an officer will normally receive an honorable characterization of service when the quality of the officer抯 service has met the standards of acceptable conduct and performance of duty. b. General (under honorable conditions) characterization of service, an officer will normally receive an under honorable conditions characterization of service when the officer抯 military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Under other than honorable conditions characterization of service. A discharge under other than honorable conditions is an administrative separation from the service. d. Dismissal. A GCM may sentence a commissioned officer to a dismissal. e. Paragraph 5-17a states, an officer convicted and sentenced to dismissal as a result of General Court Martial proceedings will be processed pending appellate review of such proceedings as follows: (1) A regular Army officer will be retained on active duty until the appellate review is completed or placed on excess leave in accordance with AR 600𤾃0. (2) A reserve component officer may be released from active duty pending completion of the appellate review or placed on excess leave in accordance with AR 600𤾃0 in lieu of REFRAD. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency 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. a. This guidance does not mandate relief but 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. 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. 4. 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// ABCMR Record of Proceedings (cont) AR20220009617 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1