IN THE CASE OF: BOARD DATE: 30 August 2023 DOCKET NUMBER: AR20230000447 APPLICANT REQUESTS: in effect - * an upgrade of his bad conduct character of service * restoration of his rank/grade staff sergeant (SSG)/E-6 * a personnel appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149, electronic (Application for Correction of Military Record), 23 October 2022 * Supporting Documents Package indexed to include the following evidence: * Tab A - signature page of DD Form 149, 23 October 2022 * Tab B - applicant's letter to the Board, undated * Tab C - spouse's letter to the Board, undated * Tab D - father's letter to the Board, undated * Tab E - family pictures * 20 photos * a message from his father * Tab F - education and jobs * college transcripts, 28 August 2017 * letter, Fire Department, 29 June 2022 * employee report, Fluor Enterprises, 22 July 2022 * letter, City School District, 16 June 2022 * letter, County Human Resources, 16 June 2022 * Certificate of Completion, New Employee Corrections Training, County Sheriff's Department, 2 August 2019 * Certificate of recognition as New Employee Corrections Training class president, 2 August 2019 * Certificate, Leadership Award, New Employee Corrections Training class. 2 August 2019 * Employee Counseling Statement, County Sheriff's Office Correction Division, 26 October 2019 * Tab G - statements of injustice, undated * Tab H - racial disparity memorandum and internal review report * Memorandum, Secretary of Defense, subject: Internal Review Team of Racial Disparities in the Investigative and Military Justice Systems, 2 May 2022 * Report, Racial Disparities in Military Justice, 5 May 2017 * Tab I - letters of support from co-workers and friends * letter, Mr., 23 July 2022 * memorandum, First Sergeant (1SG), 26 November 2008 * memorandum, Major (MAJ), 26 November 2008 * memorandum, Sergeant Major (SGM), 29 November 2008 * memorandum, Chief Warrant Officer Two (CW2) * letter, Sergeant First Class (SFC), 1 December 2008 * letter, Mr., undated * letter, SFC, 3 December 2008 * TAB J - military orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders 259-055, 16 September 2009 * DD Form 214, Member-4, 11 February 2011 * Defense Finance and Accounting Service – Indiana (DFAS-IN) Form 0-641 (Statement of Military Pay Account), 4 April 2011 * DA Form 31 (Request and Authority for Leave), 29 September 2009 * Tab K – Fort Bragg Freedom of Information Act (FOIA) Request * email, 23 August 2002 * email, 16 June 2022 * email, 13 June 2022 * email, 18 April 2022 * Tab L – Court of Appeals Findings * memorandum, United States Legal Services, Defense Appellate Division, 4 January 2010 * brief on behalf of appellant (1st page only), undated * supplement to petition for grant of review (1st page only), undated * argument, pages 5, 8, 9, 10, 12, 15, 16, 23, and 24, undated 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 file timely. 2. The applicant states, in effect, the military and the military judge who oversaw his court-martial made an error of fact, law, and procedure in deciding his discharge. He asserts the discharge would have been different without the error. He claims his discharge involved "racial disparity." Tabs B and Tab G include the applicant's self- authored statements, wherein he writes, in effect: a. His court martial was convened on 5 December 2008, and he was reduced from staff sergeant (SSG)/E-6 to private (PVT)/E-1. He explains, he remained assigned to the same unit, 18th Human Resource Company, 82nd Sustainment Brigade, 82nd Airborne Division, which court-martialed him until he completed separation/out- processing on 11 February 2011. During the three-year process from his court-martial to his separation, he still fulfilled all his requirements and responsibilities as a service member in the military. b. The applicant quotes portions of the legal submission to the United States Court of Appeals and highlights statements from the legal request [from his own legal counsel], such as "Appellant may be rude, crass, and inappropriate, but these traits alone do not make him a criminal." He also highlights that the legal document [show, his legal counsel] states, "He didn't have any physical contact or make attempts at quid- pro-quo with subordinates. Appellant stands convicted of six specifications of maltreatment based solely on speech." The applicant states that the Court of Criminal Appeal also included the following statement [from his legal counsel], in their proceeding, "interprets every unprofessional or inappropriate action as criminal conduct, Article 93 would face substantial constitutional challenges regarding vagueness and overbreadth." He stated that the court's findings were [his legal counsel states] that the "appellant's (applicant's) convictions for maltreatment should not stand." c. He states that after he was discharged from the military, he went on to earn a master’s degree in business management, volunteered at the local fire department, taught at a local school, served as a corrections officer, and has been an assistant high school track and basketball coach. He also states that he made numerous requests to Fort Bragg utilizing the Freedom of Information Act (FOIA) to request information about the victims in his court martial case. He attests that none of the information requested was provided. d. The applicant contends, the error made in his court martial was an error of fact, law, and procedure in deciding his discharge. The applicant explains how "racial disparity" was a contributing factor to the errors made in the processing of his discharge. He quotes data and observations cited and published in a military service component review. He also highlights points of argument, from his counsel, in the provided Criminal Court of Appeals documentation. 3. On 13 June 1995, the applicant enlisted in the Regular Army. 4. On or about 10-11 October 2002, a military inquiry was completed to investigate an incident wherein the applicant was accused of engaging in inappropriate behavior with a civilian applicant at a Military Entrance Processing Station (MEPS). Substantiated evidence collected shows the applicant exchanged phone numbers with a civilian military applicant, violating the United States Military Entrance Processing Command (USMEPCOM) Regulation 600-22, paragraph 6, stating that this action is prohibited. Additionally, it was substantiated that the applicant contacted the civilian-military applicant in her hotel room and went to see her in her hotel room. The applicant acknowledged he knew the actions he took were a violation of the regulation and he confirmed he received training that this was a violation of the regulation. 5. On 8 November 2002, while serving in the rank/grade or sergeant (SGT)/E-5, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for the following misconduct: a. In that he did, on or about 9 October 2002, violate a lawful general regulation, to wit: U.S. Military Entrance Processing Command Regulation 600-20 (Personal Relationships), paragraph 6, by wrongfully collecting the phone number of military applicant .. in violation of Article 92 (Failure to Obey order of regulation) UCMJ. b. Continuation page, annotated in the NJP documentation, is not in the applicant's record and unavailable for review. 6. On 15 March 2006, the applicant, with intent to deceive, falsified his official training record, M-16 Record Fire Qualification Score. The following documents are part of the nonjudicial punishment (NJP) packet under Article 15, UCMJ: a. The DA Forms 2823 (Sworn Statement) of four witnesses who state they observed the applicant intentionally tampering with the training record, M-16 Record Fire Qualification Score Sheet, to change his results, by making multiple alterations. b. A DA Form 3881 (Rights Waiver Procedure/Waiver Certificate) dated 16 March 2006, signed by the applicant. c. A DA Form 2823 dated 17 March 2023, wherein the applicant admits he intentionally and deliberately made a singular alteration to his official weapons training record document. 7. On 31 March 2008, while serving in the rank/grade of staff sergeant (SSG)/E-6, the applicant accepted NJP under the provisions of Article 15, UCMJ, for misconduct in violation of Article 107 (False Official Statement), UCMJ, in that he did, on or about 15 March 2006, with intent to deceive, make to SSG, an official record, to wit: an M-16 Record Fire Qualification Score, which record was false in that the applicant deliberately punched holes in the target with a pen, and was then known by the applicant to be false. His punishment consisted of forfeiture of $651.00 pay per month for one month, suspended, to be automatically remitted if not vacated before 1 July 2006: extra duty for 14 days, and restriction for 14 days. The applicant did not appeal the punishment. 8. A DA Form 4430 (Department of the Army Report of Result of Trail) shows: a. A trial by General Court-Martial on 20 December 2008 and 4-5 December 2008, convened by Court-Martial Convening Order (CMCO) Number 22, dated 18 August 2008, as amended by CMCO Number 28, dated 2 December 2008, convicted the applicant, who was serving as an SSG/E-6, of the following charge(s) and specification(s), despite his pleas of not guilty: (1) Charge I, Article 93 (Maltreatment) – (a) Specification 1 – At or near a military installation, on or about 8 February 2008, the applicant did maltreat Private (E-2).., a person subject to his orders, by saying to her, "I bet you. would have pulled duty with me; Pregnant women's pussy is better than regular women's pussy anyway," or words to that effect; and by staring at her buttocks. (b) Specification 2 – At or near a military installation, on divers occasions between on or about 10 January 2008 and 8 February 2008. The applicant did maltreat Private ., a person subject to his orders, by staring at her breasts and buttocks; and by saying to her, "You have a fat ass; all your husband does is chase ass; Your husband is a faggot; pregnant woman's pussy is better than regular woman's pussy; Private . ain't got no titties; My wife is downrange, she is a punk ass bitch, she probably has a mouthful somewhere," or words to that effect. (c) Specification 3 – At or near a military installation, between on or about 4 February 2008 and 10 February 2008, the applicant did maltreat Private (E-2) ., a person subject to his orders, by saying to her, "You are a stupid mother fucker for getting a nigger name tattooed on you; Are you fucking crazy? His is just your boyfriend, don't go get no nigger name tattooed on you," or words to that effect; and by having her sign in on the weekend because of the facial expression she made. (d) Specification 4 – At or near a military installation, on or about 29 January 2008, the applicant did maltreat Private ., a person subject to his orders, by saying to her, "When you come back from leave you owe me a favor, and that favor is to bring back your sister; Does your mom look like you? Call her, I want to meet her; I want to take your Mom out; I am an E-6 and I make lots of money and drive a nice truck; I am going to be your new step-daddy; you are going to wake up one morning and see me cooking breakfast in your kitchen naked; You can go to EO, I am EO; Go to the Chaplain, he tells me everything," or words to that effect. (e) Specification 6 – At or near a military installation, on or about 3 December 2007, the applicant did maltreat Private (E-2) , Jr., a person subject to his orders, by saying to him, "If your cousin will come to my house, my homeboys will bust her up; if you let me fuck her in the ass and give me head, I will give you the money; If you won't do it you are shit out of luck," or words to that effect. (f) Specification 7 – At or near a military installation, on or about 1 November 2007 and 31 December 2007, the applicant did maltreat Private (E-2) , a person subject to his orders, by saying to him, "I am going to call your momma, I am going to be your new step-daddy, When you come home from work, I will be standing in the kitchen cooking naked; you will see me having sex with your mom on the living room couch; You won't be able to sleep because the headboards would be knocking," or words to that effect. (2) Charge II, Article 107 (False Official Statement), Specification – At or near a military installation, on or about 25 October 2007, the applicant did, with intent to deceive, make an official statement, to wit: answer "No" in Block 26 of a Department of the Army Form 61 (Application for Appointment), which statement was false in that the Applicant had undergone proceedings and received NJP under Article 15 of the UCMJ on or about 8 November 2002 and on or about 31 March 2006, and was then known by the applicant to be so false. (3) [NOTE: After the pleas but before the findings, the military judge granted the defense's unopposed motion to dismiss the above language that had be struck/lined through.] b. The sentence consisted of a reduction to the grade of E-1 and to be discharged from service with a bad conduct discharge. c. The Sentence was adjudged on 5 December 2008 and the effective date of his reduction to the rank/grade of private (PVT)/E-1 was 19 December 2008. 9. The applicant' Enlisted Record Brief confirms his reduction in rank/grade from staff SSG/E-6 to PVT/E-1 effective 19 December 2008. 10. The applicant was placed in an approved voluntary excess leave status effective 21 October 2009 for an indefinite period. 11. General Court Martial Order Number 51, dated 3 December 2010, states, the applicant's sentence to a Bad-conduct discharge and reduction to the grade PVT/E-1 and finally been affirmed. Article 71(c) having been complied with; the Bad-Conduct discharge will be executed. 12. There were no appeal documents within the applicant's service record; however, the applicant provided portions of the submissions, statements, and arguments made by his legal counsel to the United States Army Court of Criminal Appeals for consideration of the applicant's court-martial in Tab L of his supporting documentation. This packet does not include a decision from the court of appeals, but it does include the following evidence: * letter from applicant's legal representation, 4 January 2010 * defense counsel's petition to the Court of Appeals * certificate of filing and service, 20 July 2010 * defense counsel's legal brief on behalf of the appellant * defense counsel's supplement to petition for grant of review. 13. The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant discharged from the Regular Army on 22 February 2011 with a Bad Conduct characterization of service. The document reflects the applicant's narrative reason for separation is court-martial; other; separation authority is Army Regulation 635-200, chapter 3; separation code: JJD; and reenlistment code: 4. 14. The applicant provided the additional documentation with his application: a. Tab C includes a letter from the applicant's spouse, which is undated. The spouse's letter, in effect, spoke to her husband's character. She describes how they met in the military and were dual military at one point and said he is a supportive and respectful partner. b. Tab D includes a letter from the applicant's father, wherein his father explains the applicant's childhood. He goes on to describe that the applicant was raised in a strict military home and further states the applicant was the most disciplined of his male children. In addition, he describes the adverse effects he witnessed when the applicant was initially discharged and the accomplishments the applicant achieved once he overcame the initial emotional impact. c. Tab E contains a collection of the applicant's family photographs and an encouraging statement from his father. d. Tab F contains documentation related to the applicant's educational and career accomplishments since the discharge. e. Tab H contains an internal review policy on racial disparities in the investigative and military justice system directed by the Secretary of Defense, dated 3 May 2022. The review provides observations of the causes of racial disparities and recommendations for improvements. The policy is accompanied by the published review from the internal review team, which states, in effect, in the Army from 2006 to 2015, black service members were 1.6 times (61%) more likely to face general or special court-martial compared to white members. The review showed the disparity between black and white service members ranged from 1/34 to 1.82 times more likely in any year. The review established four recommendations to improve the reported statistics that, consisted of empowering legally trained military prosecutors, instead of commanders of the accused, to refer a court marital case; collection and publishing racial and ethnic data regarding military justice involvement and outcome; tracking of victims of crimes to analyze if there is bias related to race or ethnicity; and additional research conducted to investigate the cause of racial or ethnic discrepancy within the military disciplinary and justice systems. f. Tab I contains a collection of seven letters of support from co-workers and friends. In effect the letters speak to the applicant's performance as an employee attesting to his professionalism, competency, proficiency, and attitude. The documents basically state that the friends and co-workers have witnessed the applicant being a professional and their opinions that it would be a disservice to not maintain the applicant as a soldier in the military. g. Tab J includes a copy of the permanent change of station military order related to the separation process of the applicant's discharge, dated 16 September 2009. The applicant also provided the DD Form 214 (Certificate of Release or Discharge from Active Duty), Member's Copy-4, separation date 22 February 2011. He also included the DFAS-IN Form 0-641 (Statement of Military Pay Account), capturing the computation period from 1 December 2008 through 11 February 2011. In addition, the applicant's DD Form 31 (Request for Authority of Leave) for the Voluntary Excess Leve was included. h. Tab K includes email correspondence about the applicant's request to Fort Bragg Freedom of Information Act (FOIA) personnel. The correspondence identifies the applicant's various attempts to request information from the FOIA office. 15. Regulatory guidance in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 3, where a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial. The appellate review must be completed and affirmed before the sentence is duly executed. 16. The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 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, available military records and medical review, the Board 2. 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. 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 (AR) 635-200, in effect at the time, provides for the orderly administrative separation of Soldiers in a variety of circumstances. In addition, it maintains standards of performance and conduct through characterization of service in a system that emphasizes while still providing the suitability of persons to serve in the Army on the basis of their conduct and the ability to meet required standards of duty performance and discipline. a. Chapter 3 – This is the chapter that provides guidance and information on the information as it relates to the character of service and the description of separation. Characterization at separation will be based upon the quality of the Soldier's service, including the reason for the separation and guidance, subject to the limitations under the various reasons for separation. Paragraph 3-7 addresses characterization of service as follows: (1) Honorable discharge is appropriate when the quality of the Soldier’s service 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. An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. (2) Under honorable conditions (General) is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A General discharge may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. (3) Under other than honorable conditions discharge is an administrative separation from the Service. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances when the reason for separation is based on a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army. In addition, 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 is another valid circumstance. Some examples provided by the regulation are disregard by a superior or customary superior-subordinate relationships. An under other than honorable conditions discharge will be directed by a commander exercising general court-martial authority. b. AR 635-200, paragraph 3-11, states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. c. AR 635-200, paragraph 1-13, states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest grade per AR 600-8-19, chapter 10. 3. Title 10, United States Code, section 871, Article 71 (Execution of sentence; suspension of sentence) provides in paragraph 71(c)(1), if a sentence extends to death, dismissal, or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under section 861 of this title (article 61), that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals and— a. the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court; b. such a petition is rejected by the Court of Appeals for the Armed Forces; or c. review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and— (1) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court; (2) such a petition is rejected by the Supreme Court; or (3) review is otherwise completed in accordance with the judgment of the Supreme Court. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness guided 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 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 the 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, the relative severity of the misconduct, mental and behavioral health conditions, an official governmental acknowledgment 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) AR20230000447 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1