1. Applicant's Name: a. Application Date: 16 February 2016 b. Date Received: 22 February 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his bad conduct discharge to honorable. The applicant seeks relief contending, in effect, on 14 June 2004, he began active duty in the Army. On 2 July 2008, a military judge sentenced him to a bad conduct discharge at a special court-martial, but recommended that "the convening authority suspend the adjudged punitive discharge on the condition that [the applicant] enroll in and successfully complete ASAP and an anger management program. The court also recommends the rehabilitative transfer of [the applicant] to First [Sergeant] J's troop." The Army ignored the military judge's recommendations. The applicant was discharged on 25 March 2009, with a bad conduct discharge. The applicant's military service from entry into the Army until January 2008, was noteworthy, which included a combat tour and he earned several awards for his efforts. During workup for combat deployment the applicant received a Driving while intoxicated citation. Although signs of a substance abuse problem were evident and Army regulations required leaders to step in, they did not. He believes that a good Soldier was needed for combat and that his unit determined that his treatment could wait. Substance abuse issues, post-traumatic stress disorder, immaturity, and a marriage due to pregnancy lead to the destruction of a good Soldier, whose problems had been untreated. Ultimately, the untreated mental health issues and real life pressures combined to ruin his promising career. The applicant pled guilty to two unauthorized absence periods, wherein he used marijuana, while intoxicated, during both periods. He also used cocaine while intoxicated and on liberty prior to his first unauthorized absence period. The Army ignored an experienced military judge's recommendation to provide treatment to the applicant and give him another chance. After his discharge, his life continued to spiral out of control, which included two suicide attempts, arrests and a divorce. However, he eventually was able to turn his life around. He put himself through drug and alcohol rehabilitation and continues to win the fight against substance abuse. Additionally, he put himself through truck driving school and is trying to start his own business. He knows that he is equipped to go farther in life and make a significant impact that far surpasses the expectations of those that saw his life go down in flames. Per the Board's Medical Officer, based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. A limited review through the JLV (Joint Legacy Viewer) of the applicant's Veterans Affairs records notes 19 problems (all from DoD) - no VA entered problems or diagnoses. The Veterans Affairs has not service-connected the applicant. In a records review conducted at Arlington, VA on 21 June 2017, and by a 5-0 vote, the Board determined that clemency is warranted based on his length and quality of service, to include his combat service, his prior period of honorable service, matters surrounding his discharge (i.e. in- service OBH), and his post-service accomplishments. Accordingly, the Board voted to grant partial relief by upgrading the applicant's characterization of service to under other than honorable conditions. A change in the reason for discharge is not authorized under Federal statute. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 25 March 2009 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 13, dated 18 September 2008, the violations of the UCMJ, pleas, and findings were as follows: Charge I, violation of Article 86, two specifications: AWOL, from 14 March until 16 April 2008; Guilty, consistent with plea; and, AWOL, from 9 May until 14 May 2008; Guilty, consistent with plea. Charge II, violation of Article 90, three specifications: disobeyed a lawful command (24 to 26 April 2008 and 27 April to 1 May 2008); Plea: Not Guilty, Finding: dismissed; disobeyed a lawful command (2 to 9 May 2008); Plea: Not Guilty, Finding: dismissed; and, disobeyed a lawful command (9 May 2008); Guilty, consistent with plea. Charge III, violation of Article 112a, three specifications: wrongfully used cocaine (between 1 and 6 February 2008; Guilty, consistent with plea; wrongfully used marijuana (between 21 March and 19 April 2008; Guilty, consistent with plea; and, wrongfully used marijuana (between 15 April and 14 May 2008; Guilty, consistent with plea. Charge IV, violation of Article 134: Break restriction (2 May 2008); Plea: Not Guilty, Finding: Dismissed. \ (2) Adjudged Sentence: Reduced to the grade of Private (E-1), confinement for sixty (60) days, and to be discharged from service with a bad-conduct discharge. (3) Date/Sentence Approved: 18 September 2008 / The sentence was approved and, except for that portion of the sentence extending to a bad conduct discharge, was executed. The accused was credited with forty-nine (49) days of confinement against the sentence of 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. The Special Court-Martial Order Number 13, was corrected as follows: "By adding in line 4, after the plea, Specification 1, Charge I, the following: [After entry of pleas, but before announcement of findings, the military judge granted an unopposed government motion to conform the specification to appellant's plea.]" "By deleting in line 5, Specification 1, Charge I, the finding in its entirety and substituting the following: "Finding: Guilty." (5) Date Sentence of BCD Ordered Executed: 26 February 2009 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 August 2007 / 3 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 92A10, Automated Logistical Specialist / 4 years, 6 months, 16 days d. Prior Service / Characterizations: RA, 14 June 2004 - 2 August 2007 / HD e. Overseas Service / Combat Service: SWA / Iraq (15 October 2005 - 26 September 2006) f. Awards and Decorations: AAM-2, MUC, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial as described in previous paragraph 3c. General Officer Memorandum of Reprimand (GOMOR), dated 21 July 2005, for driving a motor on 27 May 2005, vehicle with a blood alcohol content of .08 percent or higher. i. Lost Time / Mode of Return: 85 days (AWOL, 14 March - 16 April 2008; 9 - 13 May 2008; Confined by Military Authorities, 14 May - 1 July 2008) j. Diagnosed PTSD / TBI / Behavioral Health: The applicant provided a copy of his Cumberland Hall, Behavioral Health Services, Discharge and Aftercare Plan, dated 9 May 2008, which reflects the applicant was treated and diagnosed with: Adjustment Disorder, Depressed, and Alcohol Abuse. The applicant provided a copy of his Bradford Health Services, Discharge Summary, dated 20 February 2012, which reflects the applicant was treated and diagnosed with: Alcohol dependence; Hx of depressive disorder NOS; and, Hx of cocaine and cannabis abuse. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 6. POST SERVICE ACCOMPLISHMENTS: Completed rehabilitation treatment for alcohol and substance. Earned his Commercial Driver's License and is trying to open his own business. 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. Secretary of Defense Memorandum for Secretaries of the Military Departments (Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder, dated September 3, 2014), provided guidance to help ensure consistency across the military services in consideration of PTSD relevant to Service Members' discharges. "Liberal consideration will be given in petitions for changes in characterization of service to service treatment record entries which document one of more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military services. In cases where Service Records or any document from the period of service substantiated the existence of one or more symptoms of what is now recognized as PTSD or PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. This guidance in not applicable to cases involving pre- existing conditions which are determined not to have been incurred or aggravated while in military service." "Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Correction boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Correction Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct." 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his bad conduct discharge to honorable. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 Board 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. The applicant contends that he was diagnosed with PTSD. However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The applicant's service record is void of a mental status evaluation. It appears the military judge determined he knew the difference between what was right and wrong. The applicant contends the convening authority ignored the military judge's recommendation that the applicant received treatment prior to execution of his discharge. However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the convening authority is not bound by a recommendation and the character of the applicant's discharge is commensurate with his sentence. The applicant contends that he had good service which included a combat tour. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good performance after leaving or while serving in the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 21 June 2017, and by a 5-0 vote, the Board determined that clemency is warranted based on his length and quality of service, to include his combat service, his prior period of honorable service, matters surrounding his discharge (i.e. in-service OBH), and his post-service accomplishments. Accordingly, the Board voted to grant partial relief by upgrading the applicant's characterization of service to under other than honorable conditions. A change in the reason for discharge is not authorized under Federal statute. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change f. 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 AR20160004735 4