1. Applicant's Name: a. Application Date: 29 May 2014 b. Date Received: 13 October 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, he requests an upgrade for the purpose of getting his life back in order, to get help from mental health, as well as get off the streets and back on his feet to provide for his family. He contends what he did was wrong and that he only went AWOL in December 2002 because his wife at the time had taken their three children and vanished, which was too much for him to handle. He tried to get out under better conditions and was in the process of doing so when his new first sergeant told him he would only get out thru the Regional Correctional Facility because he needed to keep all his good Soldiers around. After hearing this, the applicant decided the only way he could get away to find his kids was to just leave. The applicant found his kids; however, due to the conditions he has had to live in, he cannot see them and for these reasons he is trying to get help to fix his body, mind, and soul. In a records review conducted at Arlington, VA on 8 March 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial, Other / AR 635-200, Chapter 3 Section IV / JDD / RE-4 / Bad Conduct b. Date of Discharge: 3 October 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad Conduct Discharge: As announced by Special Court-Martial Order Number 49, dated 17 December 2003, the applicant was found guilty of the following charge: without authority on 4 December 2002, absented himself from his unit until apprehended on 8 May 2003. (2) Adjudged Sentence: A reduction to E-1, confinement for 100 days, and to be discharged from the service with a bad-conduct discharge. (3) Date/Sentence Approved: 17 December 2003, except for that part of the sentence extending to a bad conduct discharge, would be executed, and the applicant would be credited with 64 days of confinement against the sentence to confinement. (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 29 July 2005 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 October 1997 / 6 years b. Age at Enlistment / Education / GT Score: 19 / NIF / 107 c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 20 years, 3 months, 10 days d. Prior Service / Characterizations: RA, 30 December 1993 to 30 September 1997 / HD e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: August 2001 thru February 2002, Fully Capable h. Disciplinary Action(s) / Evidentiary Record: FG Article 15, dated 7 August 2002, for being derelict in the performance of his duties (16 June 2002), by willfully failing to conduct an inspection of his unit's ammunition holding area and feign a knee injury for the purpose of avoiding physical training (15 July 2002). The punishment consisted of a reduction to E-4, forfeiture of $876 (suspended), and extra duty and restriction for 45 days. Evidence in the applicant's court-martial documents reflect the suspension of the forfeiture of $876.00 pay was vacated on 27 August 2002. It was also noted that the applicant received a Company Grade Article 15 on 18 October 2002. The punishment consisted of a reduction to E-3, forfeiture of $342 pay, extra duty for 14 days, restriction for 14 days (suspended). Six DA Forms 4187, dated between 4 December 2002 and 8 September 2014, reflect the applicant's duty status changed as follows: from "Present for Duty (PDY)" to "AWOL," effective 4 December 2002 from "AWOL" to "Dropped From Rolls (DFR)," effective 3 January 2003 from "PDY" to "Confined by Military Authorities (CMA)," effective 11 July 2003 from "CMA" to "PDY," effective 30 July 2003 from "PDY" to "CMA," effective 7 March 2012 from "CMA" to "PDY," effective 23 August 2013 The applicant received numerous negative counseling statements for various acts of misconduct and performance counseling. i. Lost Time / Mode of Return: 174 days 155 days (AWOL, 4 December 2002 to 8 May 2003) / apprehended by civilian authorities 19 days (Confinement, 11 July 2003 to 29 July 2003) / completion of sentence 4,084 days (Excess leave, 30 July 2003 to 3 October 2014) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to general, under honorable conditions. The applicant's record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms there was full consideration of all faithful and honorable service, as well as, the incidents of misconduct. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Army Discharge Review Board (ADRB) is empowered to change the discharge 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. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The applicant contends that his misconduct was the result of his wife taking their three children and vanishing, which was too much for him to handle. The applicant's contentions were noted; however, while the applicant may believe he had no other choices, the record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. The applicant expressed his desire for an upgrade for the purpose of getting his life back in order, to get help from mental health, as well as get off the streets and back on his feet to provide for his family. However, eligibility for veterans' benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 8 March 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150016831 1