IN THE CASE OF: BOARD DATE: 27 January 2023 DOCKET NUMBER: AR20220006201 APPLICANT REQUESTS: Upgrade of his dishonorable discharge to honorable, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 20 July 2021 * Brief from Counsel (8 pages) labeled as: * Tab A – * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 October 1984 * DD Form 214, for the period ending 20 August 2002 * DA Form 5016 (Chronological Statement of Retirement Points) * Tab B – DA Form 4430 (Department of the Army Report of Result of Trial) * Tab C – Applicant's Declaration * Tab D – Petition for Pardon * Tab E – Deposition of Major General (MG) * Tab F – Letters of support * Tab G – Hagel Memorandum and Clarifying Guidance FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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. Through Counsel, the applicant provides a brief that is available in its entirety for the Board's consideration. Counsel contends the applicant's discharge should be upgraded to Honorable, and that the narrative reason for separation, Separation Program Designator (SPD) code, and Reentry Eligibility (RE) code should be changed to reflect "Secretarial Authority" as a matter of clemency. The applicant served with the 372nd Military Police Company at Abu Ghraib prison in Iraq in 2003. a. On 21 October 2004, the applicant pleaded guilty to violating Articles 81, 92, 93, 128, and 134 of the Uniform Code of Military Justice (UCMJ). As a result, he was sentenced to confinement for 10 years, reduction to E-1, total forfeitures, and a dishonorable discharge. (Tabs B and C) b. The applicant has taken full responsibility for his actions and continues to recognize that his transgressions were wrong. Upon his arrival at Abu Ghraib in 2003, the applicant witnessed prisoners being mistreated and he was specifically told to do so himself. (Tabs C and D) c. As he outlined in his Petition for Pardon, the legal status of the detainees was never made clear to him, nor were the rules for guard conduct communicated to him. In the absence of such guidance, he followed the practices being employed and encouraged by his superiors, peers, and subordinates. MG , the former commander of the U.S. Detention Facilities acknowledged in his deposition that the treatment of detainees, which predated the applicant's involvement, constituted violations of the Geneva Convention. (Tabs D and E) d. There was grave disparity in punishment and sentences awarded to others who also participated in misconduct at Abu Ghraib. The applicant played an incredibly small role in state-sanctioned enhanced interrogation. His superiors were administratively separated from the military or received letters of reprimand. His sentence shows a gross disparity with similarly situated as well as far more egregious cases of detainee abuse. e. It has been reported by the Department of Defense that over 600 investigations were undertaken of detainee abuse. Some involved death and homicides. The applicant refused a sentence of confinement for 10 years, the longest of any defendant. Research revealed that only two other defendants received sentences of over a year. f. Of note, the applicant cooperated fully with the government in the prosecution of other wrongdoers by testifying in six courts-martial. His post-service conduct is strong evidence in support of his request for clemency. He has conducted himself as an upstanding member of society since his release from confinement. He obtained and maintained employment as a dog trainer. He has also been an active participant in the American Legion, Lions Club International, and other charitable events. (Tabs C and D) g. The applicant was diagnosed with post-traumatic stress disorder (PTSD) in 2004 and it is undoubtedly connected to his experiences in Iraq. Review is requested in accordance with Secretary of Defense Hagel's Memorandum, dated 3 September 2014, and the clarifying guidance memorandum issued on 25 August 2017, for liberal consideration of veterans petitioning for discharge relief when the relief is based in whole or in part on matters relating to mental health conditions, including PTSD. 3. Following previous honorable service in Army National Guard (ARNG), the applicant enlisted into the United States Army Reserve (USAR) on 29 August 1995, for 3 years. 4. The applicant's DD Form 214, for the period of 30 September 2001 through 20 August 2002, shows he was ordered to active duty in support of Operation Noble Eagle in response to the World Trade Center and Pentagon attacks. He was credited with 10 months and 21 days of net active service during this period. Upon completion of his required active service, he was honorably released from active duty and returned to his USAR unit. 5. Orders A-11-411895, issued by the U.S. Army Human Resources Command on 19 November 2004, show the applicant was ordered to active duty on 29 November 2004 in the rank of private (PV1), and was assigned to the Correctional Hold Detachment, Fort Leavenworth, Kansas, for the purpose of UCMJ processing. His date of rank of was established as 21 October 2004. 6. General Court-Martial Order (GCMO) Number 29 issued by Headquarters, III Corps and Fort Hood, Fort Hood, Texas on 7 September 2005 shows the applicant was arraigned at Baghdad and Victory Base, Iraq. The GCM was adjudged on 21 October 2004. a. With some plea concessions, he pled guilty and was found guilty of the following charges in violation of the UCMJ: (1) Charge I: Violation of Article 81 – Conspiracy to maltreat. (2) Charge II: Violation of Article 92 – Dereliction of duty. (3) Charge III: 4 Specifications of Violation of Article 93 – Maltreatment of detainee. (4) Charge IV: 1 Specification of Violation of Article 128 – Assault to produce grievous bodily harm. (5) Charge V: The Specification of Violation of Article 134 – Indecent acts. b. The court sentenced him to 10 years confinement, reduction to the grade of E-1, forfeiture of all pay and allowances, and to be discharged from the service with a dishonorable discharge. c. He was credited with 20 days of confinement credit. 7. GCMO Number 164, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma on 13 August 2009, shows the sentence had been affirmed and the portion of the sentence pertaining to confinement had been served. The remainder of the sentence pertaining to dishonorable discharge was ordered to be duly executed. 8. Orders and a DD Form 214 show the applicant was discharged from the USAR on 2 December 2009. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial. His service was characterized as dishonorable, with SPD Code "JJD" and RE Code "4." He was credited with completion of 1 year, 1 month, and 19 days, of net active service this period, with lost time from 21 October 2004 until 2 December 2009. 9. The applicant's record is void of evidence showing he was diagnosed with PTSD or any other medical of behavioral health condition during his period of service. 10. Counsel provides seven Exhibits, at the Tabs indicated: a. Tab A: * A DD Form 214 which shows he served on active duty for training as a member of the ARNG from 16 July 1984 until 26 October 1984 * DD Form 214 which shows he served on active duty as a member of the USAR from 30 September 2001 until 20 August 2002 * DA Form 5016 which shows the applicant accrued 20 years, 8 months, and 5 days of qualifying service for retirement as of his date of discharge b. Tab B – The aforementioned DA Form 4430. c. Tab C – A Declaration rendered by the applicant on 25 March 2022 wherein he provides a synopsis of his military career with emphasis on his time spent at the Baghdad Central Correctional Facility in Iraq. Upon observing and questioning things that were against his morals he was advised that was the way Military Intelligence wanted the high value targets to be treated as it was a way to soften them up prior to interrogation. He desires a discharge upgrade to become eligible for much needed medical treatment for service-related conditions to include PTSD, a dry cough in his lungs, and unexplained hive-like rashes on his skin. He routinely experiences recurring nightmares, insomnia, and anxiety. d. Tab D – The Petition for Pardon After Completion of Sentence submitted to the Secretary of the Army on behalf of the applicant on 7 October 2016. e. Tab E – The Deposition of Major General (MG) rendered during the applicant's GCM trial. f. Tab F: * Two character reference letters wherein the authors speak highly of the applicant and his contributions to his community * A letter rendered by a at Stanford University who recommends clemency due to applicant's service-related PTSD g. Tab G – Copies of the Hagel Memorandum and Clarifying Guidance. 11. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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; this includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 12. Department of Defense published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 13. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his dishonorable discharge to honorable. He contends he had a mental health condition that mitigated his discharge, PTSD. 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) Following previous honorable service in Army National Guard (ARNG), the applicant enlisted into the United States Army Reserve (USAR) on 29 August 1995; 2) The applicant served with the 372nd Military Police Company at Abu Ghraib prison in Iraq in 2003; 3) On 21 October 2004, the applicant pled guilty to violating Articles 81 (Conspiracy to maltreat), 92 (Dereliction of duty), 93 (Maltreatment of detainee), 128 (Assault to produce grievous bodily harm), and 134 (Indecent acts) of the Uniform Code of Military Justice (UCMJ). He was sentenced to confinement for 10 years, reduction to E-1, total forfeitures, and a dishonorable discharge; 4) The applicant was discharged from the USAR on 2 December 2009 with a Chapter 3, as a result of court-martial. His service was characterized as dishonorable c. 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) and VA’s Joint Legacy Viewer (JLV) were also examined. d. The applicant asserts he was experiencing PTSD as a result of his experiences in Iraq. The applicant did not have a record of behavioral health treatment while on active service. He reported being diagnosed with PTSD “while in Germany” in 2004. The applicant did not provide any documentation beyond self-report of this diagnosis and JLV and AHLTA were void of any behavioral health documentation. The applicant does not receive any service-connected disability. 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. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD that contributed to his misconduct. B. Did the condition exist, or experience occur during military service? Yes, the applicant contends his PTSD occurred while on active service. C. Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. Also, there is no nexus between PTSD and the applicant’s misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD; 2) PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his diagnose resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. 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 to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found the evidence of post-service achievements and statements of support 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 PTSD. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation and the reason for his separation and the associated codes were 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 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, USC, 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. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Title 10, USC, Section 1552(b), provides, with respect to courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 4. Title 10, USC1, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Court-martial convictions stand as adjudged or modified by appeal through the judicial process, 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. 5. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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 when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances. (1) An under-other-than-honorable-conditions discharge will be directed only by a commander exercising general court-martial authority, a general officer in command who has a judge advocate or legal advisor available to his/her command, higher authority, or the commander exercising special court-martial convening authority over the Soldier who submitted a request for discharge in lieu of court-martial (see chapter 10) when delegated authority to approve such requests. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. Examples of factors that may be considered include the following: * Use of force or violence to produce bodily injury or death * Abuse of a position of trust * Disregard by a superior of customary superior-subordinate relationships * Acts or omissions that endanger the security of the United States or the health and welfare of other Soldiers of the Army * Deliberate acts or omissions that seriously endanger the health and safety of other persons d. A bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence then ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. e. A dishonorable discharge will be given to a Soldier pursuant only to an approved sentence of a general court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 7. Army Regulation 635-5-1 (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. It states that the separation code "JJD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 3, by reason of Court-Martial. Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 8. Army Regulation 601-210 (Active 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 Soldiers completing their term of active service, who are considered 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 Soldiers 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 Soldiers separated from last period of service with a non- waivable disqualification 9. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014 [Hagel Memorandum], 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 UOTHC 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. 10. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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 misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 11. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006201 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1