1. Applicant's Name: a. Application Date: 3 May 2017 b. Date Received: 12 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of her bad conduct discharge to honorable. The applicant seeks relief contending, in effect, that the applicant was wrongfully deprived of the potential to contribute significantly to the Army and to the United States. In her career before and after her tenure at Charlie Company, the applicant exhibited an outstanding dedication to service and a penchant for military bearing and decorum. The charges levied against her were not proven by the government beyond a reasonable doubt. The commissioned and noncommissioned officers of Charlie Company had divested themselves of rank and office, and the applicant was forced into such extreme emotional distress that she did not have the capacity to appreciate the criminality of her actions. Because of this singular event, she can no longer provide for herself or her dependent mother, and the present characterization of her discharge will completely limit the applicant from accomplishing her career and educational goals. The Army should show the same loyalty to the applicant that she had shown to the Army and the country for seven years and upgrade the characterization of her discharge to reflect her honorable service. 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 mitigating medical or behavioral health condition for the offenses which led to her separation from the Army. In summary, SM does not have a mitigating medical and/or behavioral health diagnosis. Her behavioral health conditions did not warrant separation through medical channels and the requests by Command for Fit for duty/Command directed mental health evaluations appeared to be appropriate and not retaliatory in response to her behaviors. In a records review conducted at Arlington, VA on 13 June 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 February 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 1, dated 24 January 2013, on 6 September 2012, the applicant was found guilty of the following: Charge I: Article 89. Plea: Not Guilty. Finding: Guilty. Specification 1: On or about 30 March 2012, behave herself with disrespect toward 1LT M.A.R., by using abusive language to wit: "fuck you all" and "bitch.'' or words to that effect. Plea: Not Guilty. Finding: Guilty. Specification 2: On or about 30 March 2012, behave herself with disrespect toward CPT T.W., by saying to him "fuck you, motherfucker," or words to that effect. Plea: Not Guilty. Finding: Not Guilty. Specification 3: On or about 30 March 2012, behave herself with disrespect toward 1LT M.A.R, by yelling and pointing her finger at 1LT M.A.R. Plea: Not Guilty. Finding: Guilty. Charge 11: Article 90. Plea: Not Guilty. Finding: Guilty. The Specification: Having received a lawful command from 1LT M.A.R, to stand at parade rest, on or about 30 March 2012, willfully disobey the same. Plea: Not Guilty. Finding: Guilty. Charge III: Article 91. Plea: Not Guilty. Finding: Guilty. Specification 1: Having received a lawful order from 1SG R.C.R., to "at ease," an order which it was her duty to obey, on or about 30 March 2012, willfully disobey the same. Plea: Not Guilty. Finding: Guilty. Specification 2: On or about 30 March 2012, was disrespectful in language toward 1SG R.C.R., by saying to him. "fuck you, motherfucker," or words to that effect. Plea: Not Guilty. Finding: Not Guilty. Specification 3: On or about 30 March 2012, was disrespectful in deportment toward 1SG R.C.R., by screaming and yelling toward 1SG R.C.R. Plea: Not Guilty. Finding: Guilty. Specification 4: On or about 30 March 2012, did strike SSG T.D.D., by physically knocking down his right arm with her hand. Plea: Not Guilty. Finding: Guilty. Specification 5: Having received a lawful order from SGT D.J.T., to stand at parade rest, an order which it was her duty to obey, on or about 30 March 2012, willfully disobey the same. Plea: Not Guilty. Finding: Guilty. Specification 6: On or about 30 March 2012, was disrespectful in language toward SGT D.J.T., by saying to him. "fuck you," or words to that effect. Plea: Not Guilty. Finding: Guilty. Specification 7: On or about 30 March 2012, did strike SGT D.J.T., by hitting him on the right side of his face and his arms with her hands. Plea: Not Guilty. Finding: Not Guilty. Charge IV: Article 134. Plea: Not Guilty. Finding: Guilty. Specification 1: On or about 30 March 2012, did wrongfully communicate to SGT D.J .T. a threat, to wit: "I will put you down" or words to that effect, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Plea: Not Guilty. Finding: Not Guilty. Specification 2: On or about 30 March 2012, was drunk and disorderly, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces. Plea: Not Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for 90 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 24 January 2013 / Reduction E-1, confinement for 90 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. (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: 9 January 2015 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2008 / 3 years b. Age at Enlistment / Education / GT Score: 41 / Bachelor's Degree / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68X10, Mental Health Specialist / 7 years, 1 month, 14 days d. Prior Service / Characterizations: RA, 14 January 1986 - 13 June 1988 / HD RA, 14 June 1988 - 29 August 1989 / HD (Break in Service) RA, 20 September 2000 - 9 November 2000 / UNC (Break in Service) ARNG, 26 September 2007 - 25 September 2008 / HD (Break in Service) e. Overseas Service / Combat Service: Hawaii, Korea, SWA / Iraq (7 April 2011 - 25 May 2011) f. Awards and Decorations: AAM-3, AGCM, NDSM, GWOTSM, ICM-CS, ASR, OSR / The applicant's service record reflects she served in Korea, however, the award of the KDSM is not reflected on her DD Form 214. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Marital Order as described in previous paragraph 3c. Personnel Action form, reflects the applicant's duty status changed from "Present for Duty (PDY)" to "Confinement" effective 6 September 2012. i. Lost Time / Mode of Return: 63 days (Confinement, 6 September 2012 - 8 November 2012) / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief. 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. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service 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 a mental health condition, including PTSD; TBI; or sexual assault/harassment 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 characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors 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. Caution shall be exercised 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 her bad conduct discharge to honorable. The applicant's record of service, the issues and documents submitted with her 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 charges levied against her were not proven by the government beyond a reasonable doubt. However, 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 she was found guilty cannot form a basis for relief. The applicant contends the leadership of her unit divested themselves of rank and office, which forced her into extreme emotional distress where she did not have the capacity to appreciate the criminality of her actions. 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 her overall service record. Further, the service record contains no evidence of a mental or medical disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. The applicant contends the event that caused her discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends her discharge should be upgraded because the Army should show her the same loyalty, which she gave to the Army. However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The applicant contends that an upgrade of her discharge will allow her to obtain better employment to support her dependent mother. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The applicant contends that an upgrade of her discharge would allow to pursue educational benefits. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill 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 she had good service which included a combat tour. The applicant's service accomplishments and the quality of her service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for her 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 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 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 AR20170007671 1