1. Applicant's Name: a. Application Date: 5 January 2017 b. Date Received: 6 February 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief contending, in effect, an upgrade will allow eligibility to VA medical benefits. The applicant states, the incident that resulted in discharge, occurred near the end of a second period of enlistment. The applicant originally enlisted 2001 and would have been discharged in 2005, but reenlisted during a second tour of duty in Iraq in 2005. The applicant reenlisted for another four year term, of which, the applicant completed two-thirds of the enlistment, before the offense occurred and was charged with desertion and court martialed. The applicant states, prior to a third deployment, the wife left Fort Stewart to return home to Kansas City, with their five year old son. Upon completion of service, the applicant was to return there and continue their lives together. A few months after she left, she stopped contact with the applicant and the applicant was informed by the wife's sister that she was prostituting, doing drugs, taking the son to drug houses, and putting the son in danger. The applicant attempted to obtain leave to travel to Kansas City to find the son and remove him from the situation. After repeated attempts, the applicant was told that they would not be able to help until after they deployed. The applicant believed the son was in imminent danger, so the applicant vacated the unit and travelled to Kansas City, in an unsuccessful attempt to find the son. The applicant states that after a period of being AWOL and having missed movement, the applicant returned to Fort Stewart and submitted to military authorities. The applicant would have been willing to return to the unit, however the command opted to court-martial. The applicant was under represented during the court-martial. The presiding Judge at the court-martial had asked the applicant on multiple occasions, if the applicant believed that the son was in imminent danger, and asked if the applicant feared for the son's life. The applicant did believe the son's life was in danger, which is the only reason the applicant left without authorization. However, after consulting with counsel, CPT N, and relying on her expertise to represent the applicant, the applicant answered "no" to the questions as advised. The applicant believes that this answer had a severe negative impact on the disposition of the court-martial, and believes the judge, by asking this question more than once, was providing the applicant with an opportunity to have a stronger case, if the applicant had answered yes. The applicant did not trust one's own judgment and feelings, and instead relied on advice from counsel. The applicant was incarcerated as a result of the court-martial and during that time, the now ex- wife lost custody of their son, and her mother was granted guardianship. The son has been diagnosed with emotional and behavioral mental health issues, which are a result of the trauma placed on him during that period. After several years of court hearings, the applicant gained custody of the son, who is now 15. This request for an upgrade, may qualify the applicant for VA medical benefits, which will allows the applicant to get the son the help he needs. The applicant has found other healthcare options to be unaffordable and learned that because of completing the first enlistment honorably, but may qualify for medical benefits. The applicant believes that professional care is the only thing that will help the son, who struggles daily with emotional and behavioral mental health issues. The applicant has fought hard to gain custody of him and cannot let him down in this matter. The applicant will continue to fight hard to obtain the medical benefits the applicant has earned and deserves. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate diagnoses of Adjustment Disorder with anxiety, Malingering, and Personality Disorder NOS. The applicant does not have any VA records due to the type of discharge. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 13 June 2019, 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 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 12 December 2008 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 58, dated 8 November 2007, on 26 July 2008, the applicant was found guilty of the following: Charge I. Article 85. Plea: Guilty. Finding: Guilty. Specification: Did, on or about 12 May 2007, with intent to avoid hazardous duty, namely: Operation Iraqi Freedom V, quit his unit, to wit: Delta Battery, 1st Battalion 9th Field Artillery, located at Fort Stewart, Georgia, and did remain so absent in desertion until on or about 29 May 2007. Plea: Guilty. Finding: Guilty. Charge II. Article 87. Plea: Guilty. Finding: Guilty. Specification: Did, at or near Fort Stewart, Georgia, on or about 19 June 2007, through design the movement of Division June Rotator Flight, 3d Infantry Division, with which he was required in the course of duty to move. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for 11 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 8 November 2007 / only so much of the sentence, a reduction E-1, confinement for 11 days, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. The applicant was credited with 37 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: 17 July 2008 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 August 2005 / 4 years b. Age at Enlistment / Education / GT Score: 25 / HS Graduate / 109 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13S10, Field Artillery Surveyor / 6 years, 7 months, 15 days d. Prior Service / Characterizations: RA, 6 July 2001 - 19 August 2005 / HD e. Overseas Service / Combat Service: SWA / Iraq (17 January 2005 - 10 January 2006) f. Awards and Decorations: ARCOM, MUC, AGCM, NDSM, AFEM, GWOTEM, GWOTSM, ASR, CAB g. Performance Ratings: 1 October 2005 - 30 September 2006 / Fully Capable h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order 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 12 May 2007; From "AWOL" to "Dropped From Rolls (DFR)," effective 13 May 2007; From "PDY" to "Confined by Military Authorities (CMA)" effective 19 June 2007; and, From "CMA" to "PDY," effective 23 March 2008. i. Lost Time / Mode of Return: 294 days AWOL, 12 May 2007 - 29 May 2007 / Surrendered to Military Authorities CMA, 19 June 2007 - 22 March 2008 / Released from CMA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application. 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. 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 family issues that 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 his case was not given adequate counsel during his court-martial. 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. The character of the applicant's discharge is commensurate with his overall service record. The applicant contends that an upgrade of his discharge would allow veterans benefits through the use of a VA. However, eligibility for veteran's benefits to include VA medical treatment, 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. 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 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 13 June 2019, 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 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 AR20170001626 2