1. Applicant's Name: a. Application Date: 26 May 2016 b. Date Received: 31 May 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable. The applicant seeks relief contending, in effect, that after he competed Basic and Advanced Individual training he served 12 months in Korea. During those 16 months, he was a good Soldier. He returned stateside and was assigned to Fort Carson and when he reported to his new unit, he slept in his vehicle the first night because he was told they did not have time to in-process him. For approximately four months, the leadership comradery and esprit de corps became distant in comparison to his previous unit and this made him not want to be in the Army. Additionally, he was having personal issues at home. The combination of being in a bad unit and the problems at home were factors that led him to be AWOL for 429 days. Despite the urging of his father, a Navy veteran and his first cousin, a retired Army sergeant major, he chose not to return to Fort Carson. He states he should have listened to them, but he did not and now he is paying the consequences for his actions. Since his discharge, he has resolved all of his personal issues and is a good citizen. He is proud of his military service, while he was on active duty and considered himself to be a good Soldier. He made a terrible decision by not returning to his unit and he regrets his decision. He has been gainfully employed from time to time and is currently helping his elder parents and other elder relatives with their needs. He has been raising his six year old daughter as a single parent and he states, he should have listened to the advice of his father and cousin and completed his obligation without question. He has been paying for the terrible decisions he made 11 years ago and continues to live with the bad decisions of his youth. He states, if he were able to do so now, he would, without hesitation, serve the country again and be the good Soldier that he once was. In a records review conducted at Arlington, VA on 11 August 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 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 2 April 2004 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 163, dated 30 October 2003, reflects on 18 March 2003, the applicant was found guilty of the following: Charge I, in violation of Article 86, three specifications, AWOL between, 22 January to 15 March 2002; 15 March to 18 October 2002; and, 21 to 29 October 2002. The applicant was found guilty, consistent with his plea on all the specifications. Charge II, in violation of Article 112a, two specifications, for wrongfully using marijuana between 5 November and 5 December 2001; and, wrongfully using methamphetamines between 3 and 5 December 2001. The applicant was found guilty, consistent with his plea on both specifications. (2) Adjudged Sentence: Reduction to E-1; forfeiture of $737 pay per month for 10 months; confinement for six months; and, to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 18 March 2003 / the adjudged sentence was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 48 days of confinement towards 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: 30 October 2003 4. SERVICE DETAILS: a. Date / Period of Enlistment: 11 May 1999 / 4 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-2 / 63T10, Bradley Fighting Vehicle System Mechanic / 3 years, 10 months, 11 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: NIF / None f. Awards and Decorations: ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial as described in previous paragraph 3c. Four Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 19 July 2001; From "AWOL" to "Dropped From Rolls (DFR)," effective 20 August 2001; From "PDY" to "Confined Military Authorities," effective 29 October 2002; and, From "Confined Military Authorities" to "PDY," effective 31 January 2003. i. Lost Time / Mode of Return: 506 days (AWOL, 22 January - 14 March 2002; 15 March - 17 October 2002; 21 - 28 October 2002 / Confined Military Authorities, 29 October - 12 December 2002; 13 December 2002 - 30 January 2003) / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; and, documents relating to his court- martial. 6. POST SERVICE ACCOMPLISHMENTS: He has resolved all of his personal issues and is a good citizen. He cares for his elders and his children. 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. 8. DISCUSSION OF FACT(S): The applicant 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 having personal issues and the poor climate in his new unit affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends that he had good service. 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 characterization 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 applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The third party statement provided with the application spoke highly of the applicant's good conduct after he left the Army; however, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, this statement did not 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 11 August 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 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 AR20160010184 3