1. Applicant's Name: a. Application Date: 29 October 2016 b. Date Received: 14 November 2016 c. Counsel: None 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, based on his 12 years of honorable service, four deployments to Iraq, award of the Purple Heart and several prestigious character references, he merits and upgrade. Additionally, his court-martial was a stand-alone court-martial with a judge and no jury. He believes his honorable record should have remained intact. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant did not have a medical or behavioral health condition. A review of military medical records revealed no history of medical or behavioral health diagnoses or a mitigating condition for the misconduct leading to an early separation. He had a history of TBI in 2006 following an IED blast; however, this condition is not reasonably related to sexual misconduct. In a records review conducted at Arlington, VA on 9 February 2018, 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: 20 August 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 19, dated 9 December 2013, on 3 October 2013, the applicant was found guilty of the following: The Charge: Article 134. Plea: Guilty. Finding: Guilty. Specification 1: The applicant, at or near Camp Taji, Iraq, did, between on or about 30 April 2011, and on or about 7 August 2011, wrongfully communicate with C.M.C., who was 14 years old at the time, by sending her Facebook messages in an effort to get her to engage in sexual contact with him, such conduct being of a nature to bring discredit upon the armed forces. Plea: Guilty. Finding: Guilty. Specification 2: The applicant, did, at or near Camp Taji, Iraq, between on or about 30 April 2011, and on or about 7 August 2011, communicate in writing to C.M.C., a child then under the age of 16 years, certain indecent language, to wit: describing sexual acts, such conduct being of a nature to bring discredit upon the armed forces. Plea: Guilty. Finding: Guilty. Specification 3: The applicant, did, at or near Camp Taji, Iraq, on or about 1 July 2011, communicate in writing to M.L.H., a child under the age of 16 years, certain indecent language, to wit: discussing sexual acts, such conduct being of a nature to bring discredit upon the armed forces. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for 10 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 9 December 2013 / only so much of the sentence, a reduction E-1, confinement for 10 months and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 September 2008 / 6 years b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 108 c. Highest Grade Achieved / MOS / Total Service: E-5 / 19K10, K8 M1 Armor Crewman / 11 years, 11 months, 3 years d. Prior Service / Characterizations: RA, 17 January 2002 - 28 October 2004 / HD RA, 29 October 2004 - 3 April 2007 / HD RA, 4 April 2007 - 24 September 2008 / HD e. Overseas Service / Combat Service: SWA / Iraq (3 April 2003 - 4 April 2004; 5 December 2005 - 5 December 2006; 6 October 2008 - 22 September 2009; 14 November 2010 - 6 November 2011) f. Awards and Decorations: ICM-4CS, PH, ARCOM-4, AAM-3, MUC, VUA, AGCM-3, NDSM, GWOTSM, NCOPDR, ASR, OSR-4, CAB g. Performance Ratings: 1 October 2008 - 30 September 2011 / Fully Capable 30 September 2011 - 29 September 2012 / Among The Best h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 3 October 2013; and, From "CMA" to "PDY," effective 4 June 2014; i. Lost Time / Mode of Return: 243 days (CMA, 3 October 2013 - 3 June 2014) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the 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 the Board should consider that his court-martial was a stand-alone court-martial with only a judge and no jury and that that the amount of dedication he had to the service should be the determining factor. 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 he had good service which included a four combat tours. 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 third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct while serving in the Army; however, it appears, the letters were considered as part of the applicant's court-martial proceedings. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity and warrant clemency. 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 9 February 2018, 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 AR20170002728 4