IN THE CASE OF: BOARD DATE: 18 January 2022 DOCKET NUMBER: AR20210007257 APPLICANT REQUESTS: upgrade of his bad conduct discharge. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 is requesting a character of discharge upgrade because he served honorably for his first enlistment, and was sexually harassed for the second. He served honorably for his first enlistment in the Army and received an Honorable Discharge. However, on his second enlistment, he went through harassment of a sexual nature and felt like he did not have anyone to tell about it because it came from within his chain of command, and throughout the unit. It is an embarrassment for him to discuss the nature of his sexual harassment during his second enlistment, however, he will discuss it more if he must. He never filed a claim during the harassment of his second enlistment because he really didn't feel that it would bring him good results. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army for 3 years on 7 September 1997 and he held military occupational specialty 92Y (Unit Supply Specialist). b. He served in Korea from March 1995 to March 1996 and he reenlisted on 19 February 1997. c. On 5 February 1998, at Fort Campbell, KY, the applicant was convicted by a general court-martial of: * Charge I, one specification of wrongfully using marijuana * Charge II, one specification of assaulting another Soldier with a dangerous weapon or means likely to produce death or grievous bodily harm * Charge III, one specification of wrongfully using provoking and reproachful words * Charge IV, three specifications of communicating a threat * Charge V, three specifications of disrespecting a lawful order from a commissioned officer * Charge VII, seven specifications of disrespecting a noncommissioned officer and three specifications of disobeying a lawful order of a superior noncommissioned officer (NCO) Charge VIII, two specifications of failing to go at the time prescribed to his appointed place of duty d. The court sentenced him to reduction to the lowest enlisted grade of private/E-1, forfeiture of all pay and allowances, confinement for 24 months, and to be discharged from the service with a bad conduct discharge. e. On 19 August 1998, the convening authority approved the sentence as provided and except for the bad conduct discharge, ordered the sentence executed. The Record of Trial was forwarded to The Judge Advocate General of the Army for appellate review. f. On 5 June 2001, the appellate authority (United States Army Court of Criminal Appeals) affirmed the findings of guilty and the sentence and the United States Court of Appeals for the Armed Forces denied consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals. g. General Court-Martial Order Number 10, issued by Headquarters, 101st Airborne Division, Fort Campbell, on 8 March 2002, shows the appellate review had been completed and the sentence would be executed. h. The applicant was discharged on 22 January 2003. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, with a bad conduct discharge. He completed 3 years, 9 months, and 18 days of active service, and he had lost time from 11 September 1997 to 1 April 1999. His DD Form 214 also shows: (1) Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Grenade Bar, and Air Assault Badge. (2) Block 18 (Remarks), listed Continuous Honorable Service from 1994-09-07 to 1997-02-18 and his Immediate Reenlistment This Period 1994-09-7 to 1997-02-18. 4. He did not qualify to have his discharge reviewed by the Army Discharge Review Board (ADRB). By regulation (AR 15-180 (Army Discharge Review Board (ADRB)), service members convicted by a general court-martial are not eligible to apply to the ADRB, and may apply to the ABCMR. 5. By regulation (AR 15-185), the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 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. By regulation (AR 635-200), 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 the affirmed sentence ordered duly executed. 7. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Bad Conduct discharge was due to an MST he experienced while on active duty. a. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed, as it was not in use during his time in service. No hard copy military medical records or civilian medical documentation was provided for review. b. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 06 Jun 1994 and subsequently transferred to the Regular Army on 07 Sep 1994. He immediately reenlisted on 19 Feb 1997. During his military career, he was assigned overseas to Korea from 28 Mar 1995 - 27 Mar 1996. While on active duty, his awards included the National Defense Service Medal, Army Service Medal and Army Service Ribbon. His job position was as a Unit Supply Specialist. A Court Martial Order, Fort Campbell, KY, dated 19 Aug 1998, found him guilty for marijuana use, “assaulted SPC with a dangerous weapon or means likely to produce death or grievous bodily harm” (10 Sep 1997), “disrespect to NCO” (Aug 1997), “disobey lawful order” (Aug 1997), and failure to go to extra duty and physical training (Aug 1997). He was sentenced to 24 months of confinement. He received a Bad Conduct discharge on 22 Jan 2003 with narrative reason for separation, Court-Martial, Other. c. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). A Social Work Counseling Note, dated 30 Jan 2020 indicated, “Veteran informed social worker that he is currently residing in his home. Veteran states he was not making enough money to pay his mortgage and his home went into foreclosure. Veteran states he’s gone to court and was given until April 1st to vacate the home. Veteran states he is working to get his discharge upgraded due to a bad conduct discharge…Veteran was calm and cooperative.” There was no available data on the problem list. d. Based on the information in the applicant’s medical record, it is the opinion of the Agency psychologist that there are no mitigating Behavioral Health conditions. Problems arising from trauma and stressor related symptoms/MST often contribute to self-isolation, anger outbursts, aggressive behavior, intrusive memories, nightmares, interpersonal difficulties, poor sleep and self-medication with drugs/alcohol. Assault with a dangerous weapon with the means to seriously harm or cause death is not part of the natural history or sequelae of trauma and stressor related symptoms/MST, or other behavior health conditions, and, as such, is not mitigated under Liberal Consideration. BOARD DISCUSSION: 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 considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records, VA documents available or provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence in support of 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. 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, United States 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 635-200 (Active Duty Enlisted Administrative Separations) provides 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. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member 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 the affirmed sentence ordered duly executed. 3. Title 10, U.S. Code, 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, 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 Uniform Code of Military Justice 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. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. 5. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to 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 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. 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, BCM/NRs 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. 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007257 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1