IN THE CASE OF: BOARD DATE: 30 August 2021 DOCKET NUMBER: AR20200009492 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20160000758 on 23 May 2017. Specifically, he requests his bad conduct discharge be upgraded to an honorable discharge. As new issues, the applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * his separation code as a code consistent with a separation directed under "Secretarial Authority" * his narrative reason for separation as "Secretarial Authority" instead of "Court- Martial - Other" * he was granted constructive credit for the time he served in confinement 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), undated, with a self-authored statement FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160000758 on 23 May 2017. 2. The applicant states: a. He served honorably and with distinction for the vast majority of his Army career. He deployed to Saudi Arabia in support of Operation Desert Storm, from 28 August 1990 through 1 April 1991. During his military service, he attained the rank of sergeant first class (SFC) and received numerous awards and decorations, including four Army Commendation Medals; four Army Achievement Medals, and five Army Good Conduct Medals. b. Although the vast majority of his service was honorable, he was charged with indecent assault, rape, soliciting a female private for sexual acts in exchange for money, wrongfully attempting to influence a witness statement, displaying disrespect to a superior officer, and making a false official statement with the intent to deceive. c. In regard to the actual charges, there is substantial evidence that throughout his court-martial held from 25 April to 11 May 2007, the applicant suffered a severe injustice due to government bias against him, unqualified government experts being placed on the stand, and trial counsel misbehavior. The level of prejudice against the applicant was so pervasive that defense counsel requested a U.S. Army Criminal Investigative Command (CID) investigation of trial counsel and that post-trial matters be handled by an independent General Court-Martial Convening Authority and Staff Judge Advocate's (SJA) outside of Korea. d. Prior to trial, and after the Article 32 Hearing, the 2nd Infantry Division SJA recommended that all charges be brought against the applicant, including the ones the investigating officer found to be incredible and recommended be dismissed. During trial, this same SJA insisted that a doctor be placed on the stand as the defense's expert witness, despite the fact that defense counsel objected to this after that doctor stated to both parties that he was unqualified. The dispute went to the decision of the military judge, who also determined that the doctor was unqualified as an expert witness. The fact that the SJA recommended that all charges, even those thought to be unfounded, be brought against the applicant and that this same SJA attempted to dictate defense counsel's strategy regarding its expert witness is a strong indication of bias against the applicant. e. There is substantial evidence of prosecutorial misconduct. Senior Defense Counsel even went so far as to initiate a report against Trial Counsel under Army Regulation 27-26, Rule 8.3, asserting violations of attorney misconduct under Rule 8.4(a-d). Most condemning are allegations from that Trial Counsel ordered a material witness (CID Special Agent) to change her testimony. The Special Agent refused to do so and notified her supervisor; however, nothing was done about this and no "Brady Notice" was circulated to the Defense in violation of Brady v. Maryland, thereby preventing exculpatory evidence from coming to light that altered testimony could affect the outcome of the case. f. Before a general court-martial, the applicant pled not guilty to all charges. He was found guilty of indecent assault, making a false official statement with intent to deceive, and wrongfully attempting to influence a witness statement. The other charges were dismissed or he was found not guilty. He was sentenced on 11 May 2007, to a reduction in grade to E-1, confinement for a period of 30 months, and separation with a UOTHC discharge. g. He served 23 months and 18 days of confinement at Fort Sill, OK and was then discharged on 12 November 2010. He received a UOTHC characterization of service; his narrative reason for separation was "Court-Martial, Other"; and his separation code was "JJD." He served a total of 20 years, two months, and 27 days of active service in the Army, with time lost from 11 May 2007 to 29 April 2009 due to confinement. h. In the prior record of proceedings, the court-martial charges included that he "willfully suffer[ed] military property to be sold in violation of Article 80." This is not listed on his charge sheet from the convening authority and he asserts that this must be a clerical error. i. Shortly after the outcome of his case, the 2nd ID SJA Office in Korea was investigated for serious prosecutorial misconduct in another case, U.S. v. Claudio. But for the misconduct of trial counsel involving changing or attempting to change witnesses' testimony, as well as the extreme bias against the applicant by the 2nd ID SJA Office in regard to attempting to influence both the convening authority and influence defense counsel strategy, the same things occurred in his case and resulted in an unfair trial. j. He suffered a severe injustice due to government bias against him, unqualified government experts being placed on the stand, serious prosecutorial misconduct, and SJA misbehavior. The level of prejudice against him was so pervasive, that defense counsel requested a CID investigation of trial counsel and that post-trial matters be handled by an independent general court-martial convening authority outside of Korea. k. The applicant requests that the ABCMR again review his outstanding post- service actions and contributions to his community under the clemency standard. As set forth in detail in his first application, the applicant states he is the loving father of three children and is currently employed full-time as a foreman in his local county government. Since his discharge, he has worked exceedingly hard to prove to himself, his family, and his community that his UOTHC characterization of service was an aberration and that he is truly a man that can be relied upon and looked up to. 3. Title 10, U.S. Code (USC), Section 1552a (3)(D) provides that any request for reconsideration of a determination of a Board under this Section, no matter when filed, shall be reconsidered by a Board under this Section if supported by materials not previously presented to or considered by the Board in making such determination. 4. Army Regulation 15-185 (ABCMR) provides that a request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The applicant's contention that he suffered serious prosecutorial misconduct during his trial and his request for post-service clemency were not previously addressed. His request for a change of the separation code, narrative reason for separation, and the granting of constructive credit for time served in confinement are new issues. 5. The applicant enlisted in the Regular Army on 27 August 1988. He executed immediate reenlistments in the Regular Army on 3 March 1993, 8 September 1994, 21 August 1997, 18 January 2000, and 13 October 2010. 6. The applicant received a relief for cause Noncommissioned Officer Evaluation Report (NCOER) for the period 1 August 2006 through 11 May 2007. 7. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 8. Before a general court-martial on or about 11 May 2007, At Camp Casey, Republic of Korea, the applicant was tried on the following charges: a. Charge II, Article 107; specifically, making a false official statement to a CID investigator with intent to deceive, on or about 21 July 2006. b. Charge IV, Article 134; specifically: (1) Specification 1, committing indecent assault upon Specialist (SPC) a person not his wife, with intent to gratify his sexual desires, on or about 5 July 2006. [Note: the language in the court martial order appears to combine two different and unrelated offenses.] (2) Specification 2, wrongfully endeavoring to influence the making of a false statement by a witness in a criminal investigation, on or about 21 July 2006. 9. The applicant was sentenced to be confined for 30 months and to be separated from service with a bad conduct discharge. The sentence was approved on or about 11 January 2008 and, except for that portion related to his separation from service with a bad conduct discharge, was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals. 10. The case appears to have been forwarded to the U.S. Army Court of Criminal Appeals for appellant review; however, a copy of the Court's affirmation is not of record. 11. General Court-Martial Order Number 188, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, Oklahoma on 8 July 2010, noted that the findings of guilty and sentence had been affirmed and ordered the bad conduct discharge to be executed. 12. The applicant was discharged on 12 November 2010, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3. The DD Form 214 further shows: * he was discharged in the rank/grade of private/E-1 * he was credited with completing 20 years, two months, and 27 days of net active service * his awards and decorations included the Army Commendation Medal (4th Award), Army Achievement Medal (4th Award), and the Army Good Conduct Medal (5th Award) * he served in a designated imminent danger pay area (Saudi Arabia) from 28 August 1990 until 1 April 1991 * his service was characterized as bad conduct * his separation code was "JJD" * his narrative reason for separation was "court-martial – other" 13. 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. 14. The ABCMR denied the applicant's prior request for an upgrade on 23 May 2017. 15. The applicant's contentions related to evidentiary and procedural matters in his court-martial would have been finally and conclusively adjudicated in the court-martial appellate process. 16. There is no provision in law or regulations that allows for lost time, due to a court- martial imposed sentence to confinement, to be converted to good time or be considered as constructive credit unless, on appeal, the court-martial was overturned. 17. The Board should consider the applicant's prior periods of honorable service, his personal awards and his statements for consideration of granting relief in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post- service achievements or letters of support to weigh 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. After reviewing the application and all supporting documents, the Board found that none of the requested relief was not warranted. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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 amend the decision of the ABCMR set forth in Docket Number AR20160000758 on 23 May 2017. 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): A review of the applicant's record shows his DD Form 214, for the period ending 12 November 2010, is missing an important entry that affects his eligibility for post- service benefits. As a result, amend the DD Form 214 by adding to Item 18 (Remarks) the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19880827 UNTIL 20000117." REFERENCES: 1. 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. 2. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 and states the narrative reason for separation is based on regulatory or other authority for Soldier's separation. It also states that lost time that is not made up is deducted from the total period of service. 3. Army Regulation 635-5-1 (Separation 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. It provides that the separation code "JJD" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 3, for discharges as the result of court-martial convictions. 4. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. A Soldier will be given a bad conduct discharge only pursuant to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 5. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records 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 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.) AR20200009492 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1