IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20230000098 APPLICANT REQUESTS: upgrade of his bad conduct discharge (BCD). Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * General Court Martial (GCM) Order Number 18 * GCM Order Number 248 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-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. The applicant states he was discharged for being homosexual. The one act of homosexual conduct he was convicted of was consensual and not forced. He was not convicted of rape. The other acts of homosexual activity were attempts. He is sorry his conduct was against Army rules at the time, but he believed the anti-homosexual rules were wrong. He also had/has post-traumatic stress disorder (PTSD) which led him to act out somewhat. He was told that the military had been reviewing bad discharges given to homosexuals during the Don’t Ask Don’t Tell (DADT) period and changing many of them to better discharges. 3. The applicant enlisted in the Regular Army on 21 May 2002 for six years. His military occupational specialty was 11B (Infantryman). In conjunction with his enlistment, he underwent a medical examination that shows he was qualified for service. 4. Before a GCM on 8 February 2005, the applicant was found guilty of: * committing sodomy with Private (PVT) by force without consent * on divers occasions between on or about 1 July 2004 and 30 July 2004, wrongfully solicit Corporal (CPL) to commit sodomy * on divers occasions between on or about 29 August 2004 and 17 September 2004, wrongfully solicit Private First Class (PFC) to commit sodomy * on divers occasions between on or about 15 September 2004 and 30 September 2004, wrongfully solicit PFC to commit sodomy * on divers occasions between on or about 15 September 2004 and 30 October 2004, wrongfully solicit PFC to commit sodomy * on divers occasions between on or about 15 September 2004 and 15 October 2004, wrongfully solicit PVT to commit sodomy * on divers occasions between on or about 15 September 2004 and 24 October 2004, wrongfully solicit PVT to commit sodomy * on divers occasions between on or about 11 October 2004 and 22 October 2004, wrongfully solicit PVT to commit sodomy * wrongfully solicit PVT on or about 20 October 2004, to commit sodomy 5. The court sentenced the applicant to reduction to PVT/E-1; confinement for 14 months, and discharge from the service with a BCD. The sentence was approved on 26 August 2005. The forfeiture of $700.00 pay and allowances per month was waived. The record of trial was forwarded for appellate review. 6. GCM Order Number 248, issued by Headquarters U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK on 7 September 2006, noted that the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 7. The applicant was discharged on 29 June 2007. His DD Form 214 shows he was discharged in the grade of E-1 under the provisions of Army Regulation 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations), Chapter 3, by reason of court-martial. He completed 5 years, 1 month, and 9 days of net active service. His DD Form 214 shows in: * Item 24 (Character of Service) - Bad Conduct * Item 26 (Separation Code) - JJD * Item 27 (Reentry Code) - 4 * Item 28 (Narrative Reason for Separation) - Court Martial (Other) 8. On 17 March 2010, the ABCMR returned the applicant’s application for upgrade of his BCD, without action. His application was incomplete in that he provided no documentation to substantiate his case. 9. On 23 February 2023, the applicant was asked to provide medical documents to support his claim of PTSD. No reply was received. 10. 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. 11. The DADT policy was implemented in 1993. This policy banned the military from investigating service members regarding their sexual orientation. Under the previous policy, service members may have been investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex. 12. The DADT Repeal Act of 2010 was a landmark U.S. federal statute enacted in December 2010 that established a process for ending the DADT policy, thus allowing gays, lesbians, and bisexuals to serve openly in the U.S. Armed Forces. It ended the policy in place since 1993 that allowed them to serve only if they kept their sexual orientation secret and the military did not learn of their sexual orientation. 13. The Under Secretary of Defense for Personnel and Readiness memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, USC, provides policy guidance for Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to follow when taking action on applications from former service members discharged under DADT or prior policies. 14. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 15. MEDICAL REVIEW: a. The applicant requests upgrade of his bad conduct discharge (BCD). He contends his misconduct was related to PTSD and DADT. 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 21 May 2022; 2) On 8 February 2005, before a GCM, he was found guilty of committing forcible sodomy and multiple instances of wrongful solicitation to commit sodomy, as outlined in the ROP; 3) The applicant was discharged on 29 June 2007, under the provisions of AR 635-200, Chapter 3, by reason of court-martial. c. The military electronic medical record, AHLTA, VA electronic medical record, JLV, ROP, and casefiles were reviewed. A review of AHLTA showed the applicant was seen at the Martin ACH Community Mental Health Clinic, Fort Benning, GA, on 17 November 2004 by a BH technician. The applicant stated he was having PTSD-like symptoms that originally started after returning from Iraq but had stopped. He reported the symptoms started again while at JRTC. The reported symptoms consisted of “vivid nightmare about Iraq” and difficulty with “loud popping noises”. The applicant also noted he was “brought up on charges for sodomy”. The tech diagnosed the applicant with a rule-out of PTSD. The applicant’s only other BH-related encounter occurred on 16 December 2004, whereby the applicant was again seen by the same BH technician. The encounter note was void of session details but showed a diagnosis of PTSD. A review of JLV was void of any treatment history for the applicant and he does not have a service-connected disability. No other BH-related records were provided for review. d. The applicant is requesting an upgrade of his BCD discharge. He contends his misconduct was related to PTSD and DADT. A review of the records showed the applicant with a diagnosis of PTSD during service, however, there is no details regarding a criteria A trauma or documentation the applicant reported sufficient symptoms to meet the diagnosis. Additionally, the diagnosis appeared to be rendered by a BH technician, who by regulation (AR 40-501), was not qualified/credentialed to render the diagnosis. Records were void any post-service diagnosis or treatment history for the applicant. Even if the applicant’s diagnosis of PTSD during service was properly rendered, misconduct characterized by forcible sodomy is not sequela of PTSD and thus the misconduct is not mitigated by the disorder. Additionally, making unwanted sexual advises to fellow service-member is also not sequela of PTSD and thus the misconduct is not mitigated by the disorder. As it relates to the applicant’s claims of being discharged specifically for being homosexual, there is insufficient evidence in the records to support his contention. Misconduct characterized by a forcible sexual act is not permitted, regardless of sexual orientation. Also, making inappropriate sexual advises is not permitted, regardless of sexual orientation. The available evidence suggests the applicant’s discharge was proper and equitable and there is insufficient evidence to warrant an upgrade of his discharge characterization. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, he contends his misconduct was related to PTSD and DADT, and per Liberal Consideration policy, 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. The applicant contends his misconduct was related to PTSD and DADT (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. The applicant is requesting an upgrade of his BCD discharge. He contends his misconduct was related to PTSD and DADT. A review of the records showed the applicant with a diagnosis of PTSD during service, however, there is no details regarding a criteria A trauma or documentation the applicant reported sufficient symptoms to meet the diagnosis. Additionally, the diagnosis appeared to be rendered by a BH technician, who by regulation (AR 40-501), was not qualified/credentialed to render the diagnosis. Records were void any post-service diagnosis or treatment history for the applicant. Even if the applicant’s diagnosis of PTSD during service was properly rendered, misconduct characterized by forcible sodomy is not sequela of PTSD and thus the misconduct is not mitigated by the disorder. Additionally, making unwanted sexual advises to fellow service-member is also not sequela of PTSD and thus the misconduct is not mitigated by the disorder. As it relates to the applicant’s claims of being discharged specifically for being homosexual, there is insufficient evidence in the records to support his contention. Misconduct characterized by a forcible sexual act is not permitted, regardless of sexual orientation. Also, making inappropriate sexual advises is not permitted, regardless of sexual orientation. The available evidence suggests the applicant’s discharge was proper and equitable and there is insufficient evidence to warrant an upgrade of his discharge characterization. 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 his characterization of service. Upon review of the applicant’s petition and available military records, the Board concurred with the advising official finding insufficient evidence in the records to support his contention. Misconduct characterized by a forcible sexual act is not permitted, regardless of sexual orientation. Also, making inappropriate sexual advises is not permitted, regardless of sexual orientation. 2. The Board agreed, the available evidence suggests the applicant’s discharge was proper and equitable and there is insufficient evidence to warrant an upgrade of his discharge characterization. ABCMR 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. The applicant provided no post service achievements or character letters of support for the Board to weigh as 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 and denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice (UCMJ), action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. 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. 5. Army Regulation 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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 sets forth the basic authority for the separation of enlisted personnel provides 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 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. d. Paragraph 5–3 (Secretarial plenary authority) provides that: (1) Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. (2) Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special Headquarter, Department of the Army directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. 7. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. 8. 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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to 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 misconduct that led to the discharge. 9. 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. 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) AR20230000098 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1