1. Applicant's Name: a. Application Date: 26 August 2016 b. Date Received: 13 September 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to a honorable discharge. The applicant seeks relief contending, in effect, his discharge should be upgraded based on a lack of maturity. He contends that at the time his acts were committed he was young and upon returning to the states after an overseas deployment, he became a drug addict. Since his discharge he has sought and received help and now lives drug free. He has a beautiful baby boy who he wants to give only the very best life has to give. He hopes to get married to his current partner and adopt her gorgeous daughter. He has been in her life since she was nine months old. He pleads for mercy from the board that his acts were committed by a kid and not the man he has become. If he could go back in time and change things he would. He is ashamed of his acts and now knows the consequences of them and has first-hand experience of how such a discharge could affect his civilian life. He believes that with these charges his career options are limited. Per the Board's Medical Officer, based on the information available for review at the time, case file, AHLTA and JLV reviewed. Based on the available information, the applicant does not have a mitigating Behavioral Health Condition for his misconduct. In a records review conducted at Arlington, VA on 8 November 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: 27 February 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: The applicant was found guilty by a Special Court-Martial of the following offenses; being absent without leave (AWOL) from his unit 20 October 2006 until his return on 7 January 2007 and 14 February 2007 until his return on 15 August 2007. On 9 October 2007, he was sentence to be discharged with a Bad Conduct Discharge and confinement for six months. On 30 November 2007, the sentence was approved. Except for that part of the sentence extending to a bad conduct discharge was ordered to be executed. The applicant was credited with 80 days confinement against the sentence to confinement. The automatic forfeiture of all pay and allowance required by Article 58b, UCMJ, was ordered waived for a period of three months, effective 23 October 2007 and directed to be paid to the spouse of the applicant in support of his family members. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 21 May 2008, The United Sates Army Court of Military Review affirmed the approved finding of guilty and the sentence. On 25 September 2008, the sentence was finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. The applicant was credited with 80 days of confinement against the sentence to confinement. The portion of the sentence extending to confinement therefore had been served. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 25 September 2008 / Bad Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 January 2004 / 3 years b. Age at Enlistment / Education / GT Score: 18 / GED / 91 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 4 years, 8 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: NIF (The applicant makes reference to having been deployed overseas; however, evidence supporting this deployment was not found in the record) f. Awards and Decorations: ARCOM, NDSM, GWOTSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 72, dated 30 November 2007, reflects the applicant was found guilty of violating Article 85 and 86 of the UCMJ. Special Court-Martial Order Number 189, dated 25 September 2008, reflects the applicant's sentence had been affirmed and the bad conduct discharge to be executed. i. Lost Time / Mode of Return: AWOL 280 days; 97 days (2 October 2006 to 7 January 2007) and 183 days (14 February 2007 to 15 August 2007), and confinement military authorities 127 days (16 August 2007 to 19 December 2007). The DD Form 214 under review also makes reference to 436 days of excess leave during the period (20 December 2007 to 27 February 2009). j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 and two letters of support. 6. POST SERVICE ACCOMPLISHMENTS: None 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 honorable. The applicant's record of service, and 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 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. The applicant seeks relief contending, in effect, his discharge should be upgraded based on a lack of maturity. He contends that at the time his acts were committed he was young and upon returning to the states after an overseas deployment, he became a drug addict. Since his discharge he has sought and received help and now lives drug free. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 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's post-service accomplishments have been noted as outlined on the application and the applicant is to be commended on his accomplishments. 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 November 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160016120 4