ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF: 
BOARD DATE: 2 April 2021  
DOCKET NUMBER: AR20200007943 
APPLICANT REQUESTS: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge; restoration of his rank/grade to specialist (SPC)/E-4; and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated in his restored rank/grade and a more favorable reentry (RE) code. Additionally, he requests a personal appearance before the Board. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 April 2020 

. 
DA Forms 638 (Recommendation for Award), dated 10 October 2003 and 6 September 2010 (four) 

. 
DA Forms 1059 (Service School Academic Evaluation), dated 26 May 2006 and 3 November 2006 

. 
DD Form 214, for the period ending 3 September 2014 

. 
character reference letters, dated between 3 August 2015 and 8 February 2016 (three) 

. 
Emergency Medical Technician (EMT) license, dated 21 September 2018 

. 
Basic Life Support Provider Card, dated 13 November 2019 

. 
Certificates of Achievement, Training, Completion, and Appreciation, dated between 22 February 2005 and 30 May 2019 (33) 


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. 
The applicant states: 


a. Prosecutors were heavy handed, due to trying to salvage a case that never should have gone to trial, to provide an example of military police (MP) being held to a higher standard. Soldiers are expected to all be held by the same standard, which is the Uniform Code of Military Justice (UCMJ). There is not a special part of the UCMJ that states MPs are held to a different standard. Furthermore, when he was found not guilty, there were no repercussions for the accuser. Short term memory loss from an undiagnosed traumatic brain injury (TBI) led to him giving an erroneous statement to the investigator. 
b. 
When asked during the court-martial for copies of the recording from his questioning, it was advised by the U.S. Army Criminal Investigation Command (CID) that they did not have them. One of the provided character reference letters states that there were in fact recordings. Furthermore, the applicant was questioned after being awake for almost 36 hours. 

c. 
Since the time of his discharge, he has been an active participant in his community as a member of the fire department. He has served for a total of seven years and is now a lieutenant. He has dedicated himself to the saving of lives and rescuing others in the community of Putnam County and the State of Florida. 


3. 
The applicant enlisted in the Regular Army on 26 June 2001. 

4. 
The applicant deployed to Iraq from 18 March 2003 through 28 February 2004. 

5. 
The applicant reenlisted in the Regular Army on 1 July 2004 and again on 15 July 2005. 

6. 
The applicant accepted non-judicial punishment on 20 March 2007, under the provisions of Article 15 of the UCMJ, for maltreatment of a Soldier subject to his orders, by making deliberate and repeated offensive touching and speeches, between on or about 19 July 2006 and 30 January 2007. His punishment included reduction to the rank/grade of SPC/E-4; forfeiture of pay for two months, suspended; extra duty for 45 days; and restriction to the limits of his home/place of worship/duty for 45 days. 

7. 
The applicant again deployed to Iraq on 21 November 2009. He reenlisted in the Regular Army on 30 December 2009. He redeployed to the continental U.S. on or about 13 November 2010. 

8. 
Before a general court-martial on or about 25 January 2012, at Fort Bliss, Texas, the applicant was found guilty of three specifications of making false official statements to special agents, with intent to deceive, on or about 23 February 2011 and 2 March 2011. The court sentenced him to confinement for a year and to be separated from service with a BCD. 

9. 
The sentence was approved on 19 June 2012 and except for the part of the sentence pertaining to the applicant's separation from service with a BCD, was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 

10. 
The available record is void of the general court-martial order noting that the applicant's sentence had been affirmed and ordered duly executed. 

11. 
In accordance with Army Regulation 27-10 (Legal Services – Military Justice), reduction to the lowest enlisted grade is automatic when an approved sentence includes a BCD. Consequently, the applicant was automatically reduced to the rank/grade of private/E-1. 

12. 
The applicant was discharged on 3 September 2014. His DD Form 214 contains the following entries in: 

. 
item 24 (Character of Service) – Bad Conduct 

. 
item 25 (Separation Authority) – AR [Army Regulation] 635-200 [Active Duty Enlisted Administrative Separations], Chapter 3 

. 
item 26 (Separation Code) – JJD 

. 
item 27 (Reentry Code) – 4 

. 
item 28 (Narrative Reason for Separation) – Court-Martial (Other) 



13. 
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. 

14. 
The applicant provides: 


a. 
Character reference letters attesting to his work ethic, leadership, and professionalism during his deployments and military service. Additionally, he provides a letter from the Chief of the x Fire Department, who describes the applicant as a trusted, reliable, and productive member of the department. 

b. 
Numerous certificates of achievement and training received during his military service and in recognition for his post-service accomplishments. 


15. MEDICAL REVIEW: 
a. 
The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for his bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge; restoration of his rank/grade to specialist (SPC)/E-4; and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated in his restored rank/grade and a more favorable reentry (RE) code. Additionally, he requests a personal appearance before the Board. 

b. 
Prosecutors were heavy handed, due to trying to salvage a case that never should have gone to trial, to provide an example of military police (MP) being held to a higher standard. Soldiers are expected to all be held by the same standard, which is the Uniform Code of Military Justice (UCMJ). There is not a special part of the UCMJ that states MPs are held to a different standard. Furthermore, when he was found not guilty, there were no repercussions for the accuser. Short term memory loss from an undiagnosed traumatic brain injury (TBI) led to him giving an erroneous statement to the investigator. 

c. 
The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: 

. 
DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 April 2020 

. 
DA Forms 638 (Recommendation for Award), dated 10 October 2003 and 6 September 2010 (four) 

. 
DA Forms 1059 (Service School Academic Evaluation), dated 26 May 2006 and 3 November 2006 

. 
DD Form 214, for the period ending 3 September 2014 

. 
character reference letters, dated between 3 August 2015 and 8 February 2016 (three) 

. 
Emergency Medical Technician (EMT) license, dated 21 September 2018 

. 
Basic Life Support Provider Card, dated 13 November 2019 

. 
Certificates of Achievement, Training, Completion, and Appreciation, dated between 22 February 2005 and 30 May 2019 (33) 

d. 
VA electronic medical record, Joint Legacy Viewer (JLV) were reviewed 



e. 
A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were reviewed. 

f. 
The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 26 June 2001 and was discharged on 3 September 2014, Chapter 3, with a Bad Conduct discharge, through Court-Martial. 

g. 
The applicant accepted non-judicial punishment on 20 March 2007, under the provisions of Article 15 of the UCMJ, for maltreatment of a Soldier subject to his orders, by making deliberate and repeated offensive touching and speeches, between on or about 19 July 2006 and 30 January 2007. 

h. 
Before a general court-martial on or about 25 January 2012, at Fort Bliss, Texas, the applicant was found guilty of three specifications of making false official statements to special agents, with intent to deceive, on or about 23 February 2011 and 2 March 2011. The court sentenced him to confinement for a year and to be separated from service with a BCD. The sentence was approved on 19 June 2012. 

i. 
JLV and AHLTA contain Behavioral Health Diagnoses of Adjustment Disorder, Sleep Disturbance, Depression, and Alcohol Dependence. 

j. 
The applicant maintains that, “Short term memory loss from an undiagnosed traumatic brain injury (TBI) led to him giving an erroneous statement to the investigator.” 

k. 
There is no indication of a TBI diagnosis in his medical records, nor did the applicant supply any documents to support this claim. 

l. 
After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicants BH diagnoses are not mitigating. The applicant met retention standards at the time of discharge. The applicant has no service connection. Under liberal guidance, his BH diagnoses are not mitigating factors for his Bad Conduct (maltreatment of a Soldier subject to his orders, by making deliberate and repeated offensive touching and speeches, and making three specifications of making false official statements to special agents, with intent to deceive). 


16. The Board should consider the entirety of the applicant's record, his statement, and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. 
BOARD DISCUSSION: 
1. 
The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for liberal consideration and clemency when considering discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the treason for his separation. The Board considered the review by the medical advising official. The Board did not find sufficient evidence of in-service mitigation to overcome the misconduct. The Board found the post-servie evidence insufficient to support clemency. Based on a preponderance of evidence, to include the Agency Behavioral Health Advisor’s opinion, the Board found insufficient evidence of error or injustice to support the applicant’s request. 

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 
:XXX :XXX :XXX 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. 
X 
CHAIRPERSON 
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 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. 
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 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. 

3. 
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 non­waivable disqualification 



4. 
Army Regulation 635-5-1 (Separation Program Designator (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. At the time, this regulation prescribed the separation code "JJD" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 3, based on court-martial (other). Additionally, the SPD/RE Code Cross Reference Table 

established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 

5. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 


a. 
Paragraph 3-7a provides that 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. 
Paragraph 3-7b provides that 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 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. 


6. 
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. 

7. 
The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 ["Hagel Memorandum"], to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged 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. 

8. 
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, 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. 


9. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and 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. Boards for Correction of Military/Naval Records 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 


ABCMR Record of Proceedings (cont) AR20200007943 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//