IN THE CASE OF: BOARD DATE: 4 April 2023 DOCKET NUMBER: AR20220010364 APPLICANT REQUESTS: upgrade of his bad conduct discharge to honorable or general. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. The applicant states he is requesting an upgrade of his discharge so all his injuries incurred while serving in the Army can be receive the proper medical attention at the VA to aide him in combating the pain and degeneration, they continuously cause him. He incurred all his injuries prior to the time frame dated for misconduct, however, he placed his soldier's physical and mental health as priority. He eventually had his injuries attended to, getting imaging, and doing physical therapy to aide in pain management. He also believes that his punishment, while not denying he deserved a punishment, was not fairly passed on him due to the social movement in the U.S. known as the "Me too" movement, as his misconduct involved publication of explicit images of a woman in his unit. Also, his commander was a woman, and Brigade legal was a woman. He believes these two biases and the overreaching social pressure from political figures in and over the military wanted to make an example of him more so than properly punish him for a non-violent crime. 2. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 23 June 2014 and reenlisted on 8 May 2018. He held military occupational specialty 91F, Small Arms Artillery Repairer. b. He served in a variety of stateside and overseas assignments, including Korea, and he attained the rank of corporal/E-4. c. On 2 March 2020, he was convicted by a general court-martial of the charges and corresponding specifications of broadcasting intimate images of a sergeant and dereliction of duties/sexually harassing the sergeant: (1) Article 117a, one specification in that he did, at or near camp Casey, Korea, between on or about 1 March 2018 and on or about 14 July 2018, knowingly, wrongfully, and without the explicit consent of Sergeant (SGT) broadcast intimate visual images of SGT who was at least 18 years of age when the visual Images were created and is Identifiable from the visual images, when he reasonably should have known that the visual images were made under circumstances in which SGT. retained a reasonable expectation of privacy regarding any broadcast of the visual images, and when he reasonably should have known that the broadcast of the-visual images was likely to cause harm, harassment, and emotional distress for SGT, or to harm substantially SGT. with respect to her reputation and personal relationships, which conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission and environment. (2) Article 92, one specification in that he, who knew of his duties at Camp Casey, Korea, from about 1 March 2018 to about 14 July 2018, was derelict in the performance of those duties in that he willfully failed to obey paragraph 7-3, Army Regulation 600-20, elated 6 November 2014, as it was his duty to do by sexually harassing SGT by distributing explicit images and videos of SGT to other Soldiers within the unit without her consent. d. The court sentenced him to reduction to private/E-1, confinement for 45 days, and a bad conduct discharge. e. On 19 March 2020, the convening authority approved only so much of the sentence as provided for reduction to the grade of E 1, confinement for 45 days (the convening authority disapproved confinement tin excess of 45 days), and a bad-conduct discharge. The record of trial was forwarded to the appellate authority for review. f. On 9 February 2021, an official at the U.S. Army Court of Criminal Appeals certified that the appellate review is complete. The findings of guilty and the sentence, adjudged on 2 March 2020 and as entered by the judgment dated 19 March 2020, have been affirmed. Pursuant to Article 57(c)(l), Uniform Code of Military Justice (UCMJ), the appellate review is complete, and the bad-conduct discharge may be executed. g. The applicant was discharged on 11 June 2021. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show she was discharged under the provisions of chapter 11 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) with a bad conduct discharge. His DD Form 214 shows he completed 6 years, 10 months, and 13 days of active service with lost time from 2 March to 7 April 2020. His DD Form 214 also states: (1) He was awarded or authorized: Army Achievement Medal (2nd Award), Army Good Conduct Medal, National Defense Service Medal, Korea Defense Service Medal, Army Service Ribbon, Global War on Terrorism Service Medal, Overseas Service Ribbon, Parachutist Badge, Drive rand Mechanic Badge (2) he had continuous honorable service from 2014-06-23 to 2018-05-07 3. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant's trial by a general court-martial was warranted by the gravity of the offenses charged (sexually-related). His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, 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 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time of his service provided that: 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 11 provided that an enlisted person would be given a bad conduct discharge 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. 2. 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. 3. The Under Secretary of Defense (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. 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. 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) AR20220010364 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1