IN THE CASE OF: 

		BOARD DATE: 13 December 2023

		DOCKET NUMBER: AR20230003114


APPLICANT REQUESTS:  Upgrade of his dishonorable discharge to under honorable 
conditions (general) or honorable.
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record)


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 he wasn't in his right mental state of mind. He has several 
Veterans Affairs disabilities that prevented him from doing the best of his abilities. The 
judge never considered his mental state of mind back then because they never found 
his disorders. Now since everything has been found, he is hoping for an upgraded 
discharge.

3.  On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and 
other mental health are related to his request.

4.  The applicant enlisted in the Regular Army on 27 November 1995. Upon completion 
of training, he was awarded military occupational specialty 63B (Wheeled Vehicle 
Mechanic). He reenlisted on 1 December 1997, 15 August 2003, and 26 May 2005.

5.  The applicant served in Iraq from 13 January 2005 until 20 December 2005. 

6.  Before a general court-martial on 17 March 2009, at Headquarters, U.S. Army 
Aberdeen Proving Ground, Aberdeen Proving Ground, MD, the applicant was found 
guilty of violations of the Uniform Code of Military Justice; however, the relevant court-
martial order is not available for review. 
7.  Before a general court-martial on 16 March 2011, at Aberdeen Proving Ground, MD, 
the applicant was found guilty of two specifications of engaging in sexual intercourse 
with two female Soldiers, by placing them in fear that he would use or abuse his military 
position to their detriment; and two specifications of wrongfully having a relationship with 
two Soldiers, not required by the training mission by having sexual intercourse with 
them. The court sentenced him to forfeiture of all pay and allowances, confinement for 
four years, and a dishonorable discharge from the service. The sentence was approved 
on 21 July 2011, and the record of trial was forwarded for appellate review.

8.  General Court-Martial Order 55, issued by Headquarters, U.S. Army Fires Center of 
Excellence and Fort Sill, Fort Sill, OK on 4 April 2011, noted that the applicant's 
sentence had been affirmed and ordered the dishonorable discharge duly executed.

9.  The applicant was discharged on 2 September 2011. His DD Form 214 (Certificate 
of Release from Active Duty) confirms he was discharged under the provisions of Army 
Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative 
Separations), Chapter 3, as a result of court-martial. His service was characterized as 
dishonorable. He was assigned Separation Code JJD and Reentry Code 4. He 
completed 13 years and 11 months of net active service this period with 678 days of 
time lost.

10.  Additionally, his DD Form 214 shows he was awarded or authorized the:  Army 
Commendation Medal (2nd Award, Army Achievement Medal (5th Award), Army Good 
Conduct Medal (4th Award), National Defense Service Medal, Global War on Terrorism 
Expeditionary Medal, Global War on Terrorism Service Medal, Korean Defense Service 
Medal, Iraq Campaign Medal with Campaign Star, Noncommissioned Officer 
Professional Development Ribbon (3rd Award), Army Service Ribbon, Overseas 
Service Ribbon (4th Award), Driver and the Mechanic Badge – Mechanic, Marksman 
Qualification Badge – Expert with Rifle.

11.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, U.S. Code, 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.

12.  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.


13.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his 
dishonorable discharge to under honorable conditions (general) or honorable. He 
asserts he was experiencing mental health conditions including PTSD during his active 
service, which contributed to 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 into the Regular Army on 27 November 1995; 2) The applicant served 
in Iraq from 13 January-20 December 2005; 3) Before a general court-martial on 16 
March 2011, the applicant was found guilty of two specifications of engaging in sexual 
intercourse with two female Soldiers, by placing them in fear that he would use or abuse 
his military position to their detriment; and two specifications of wrongfully having a 
relationship with two Soldiers, not required by the training mission by having sexual 
intercourse with them; 4) The applicant was discharged on 2 September 2011, 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 and medical records. The Armed Forces 
Health Longitudinal Technology Application (AHLTA) and the VA’s Joint Legacy Viewer 
(JLV) were also reviewed. No additional medical documentation was provided by the 
applicant.
    d.  The applicant noted mental health conditions including PTSD as contributing and 
mitigating factors in the circumstances that resulted in his misconduct. There is 
evidence the applicant reported anxiety and insomnia symptoms to his primary care 
provider while on active service during the time of his charges of misconduct. There is 
insufficient evidence the applicant was ever diagnosed with PTSD while on active 
service. A review of JLV was void of behavioral health documentation. The applicant 
does not receive any service-connected disability for a mental health condition, 
including PTSD.
    e.  Based on the available information, it is the opinion of the Agency BH Advisor that 
there is insufficient evidence to support the applicant had condition or experience that 
mitigated his misconduct.
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 he was experiencing 
mental health conditions including PTSD that contributed to his misconduct. There is 
evidence he reported symptoms of anxiety and insomnia in 2011 to his primary care 
provider while on active service.
    (2)  Did the condition exist or experience occur during military service? Yes, the 
applicant contends he was experiencing mental health conditions including PTSD that 
contributed to his misconduct. There is evidence he reported symptoms of anxiety and 
insomnia in 2011 to his primary care provider while on active service.

    (3)  Does the condition or experience actually excuse or mitigate the discharge? No, 
there is insufficient evidence the applicant was experiencing mental health conditions 
including PTSD while on active service. It appears he reported symptoms of anxiety and 
insomnia while involved in negative consequences of his illegal behavior. In addition, 
there is no nexus between the applicant’s reported mental health conditions and PTSD 
and the applicant’s misconduct of sexual harassment/assault given that: 1) this type of 
misconduct is not part of the natural history or sequelae of the applicant’s reported 
mental health conditions including PTSD; 2) the applicant’s reported mental health 
conditions including PTSD do not affect one’s ability to distinguish right from wrong and 
act in accordance with the right. 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’s consideration.     


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 
concurred with the advising official finding insufficient evidence the applicant was 
experiencing mental health conditions including PTSD while on active service. 
Additionally, there is no nexus between the applicant’s reported mental health 
conditions and PTSD and the applicant’s misconduct of sexual harassment/assault. 
Consideration was given to the applicant for the reported symptoms of anxiety and 
insomnia to his primary care provider while on active duty.

2.  The Board noted, the applicant no provided post-service achievements or character 
letters of support that could attest to his honorable conduct to weigh a clemency 
determination by the Board. The Board under liberal consideration carefully considered 
the applicant’s three prior periods of honorable service and his two deployments but 
found insufficient evidence of in-service mitigating factors for the misconduct. The Board 
determined because the applicant was a senior non-commissioned officer at the time, 
he had adequate training and experience necessary to avoid conducting such egregious 
misconduct while being entrusted to set the example for subordinate Soldiers to 
emulate.  Therefore, the Board determined the discharge characterization was proper 
and fitting for the serious misconduct and denied relief.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

xx	xx	xx	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 three 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 three-year statute of limitations if the ABCMR determines it would 
be in the interest of justice to do so.

2.  Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure 
that an applicant seeking corrective action by the 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.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel. The version in effect at the time 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 3, Section IV provided that a member would be given a dishonorable 
pursuant only to an approved sentence of a general court-martial, after completion of 
appellate review, and after such affirmed sentence has been ordered duly executed.

4.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, U.S. Code, 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.  The Secretary of Defense directed the Service Discharge Review Boards (DRB) and 
Service (BCM/NR), on 3 September 2014, 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.

6.  The Under Secretary of Defense for Personnel and Readiness provided clarifying 
guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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, 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. 

7.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and 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 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 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)	AR20230003114


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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