1. Applicant's Name: a. Application Date: 22 March 2017 b. Date Received: 3 April 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from bad conduct to honorable. The applicant seeks relief contending, in effect, he was treated unfairly after his injury in Iraq. He was accused of being AWOL but in actuality he was in the hospital at home while on leave. After his condition was stable, he reported back to his unit and became severely sick again (diabetes); because his illness was diagnosed by a civilian hospital in his hometown and not by the hospital where he was stationed, he was not prescribed medication. His health was rapidly deteriorating and he desperately needed medication, so he went back home to the original hospital that treated him. He was again accused of AWOL and as a result discharged. Per the Board's Medical Officer, a voting member, based on the information available for review in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV) the applicant had a partially mitigating behavioral health condition at the time that led to the applicant's discharge. His medical history of misdiagnosis and refusal by the chain-of-command to believe he had a serious medical condition likely led to the AWOLs. In a personal appearance hearing conducted at Arlington, VA on 27 August 2018, and by a 5-0 vote, the Board, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, severe family matters and post-service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. (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 December 2012 c. Separation Facts: NA (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; without authority, absented himself from his unit x3 (15 October 2009 until 3 June 2010, 15 September 2010 until 17 October 2010 and 16 November 2010 until 25 February 2011), until he was apprehended. On 24 May 2011, he was sentenced to be reduced to PVT / E-1, confinement for 10 months and a bad-conduct discharge. On 22 October 2011, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 30 March 2012, The US Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 25 July 2012, the sentence was finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 20 December 2012 / / Bad Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 February 2008 / 3 years, 21 weeks b. Age at Enlistment / Education / GT Score: 18 years / GED Certificate / 104 c. Highest Grade Achieved / MOS / Total Service: E-3 / 19D10, Cavalry Scout / 3 years, 10 months, 14 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq, specific dates are not in the file. f. Awards and Decorations: NDSM, GWOTSM, ASR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: AWOL x3 for 363 days, 15 October 2009 until 3 June 2010 for 229 days, mode of return unknown; 15 September 2010 until 17 October 2010 for 34 days, mode of return unknown and 16 November 2010 until 25 February 2011 for 100 days, apprehended. The applicant had 466 days of excess leave 12 September 2011 until 20 December 2012. He was also confined by military authorities, 24 May 2011 until 12 September 2011 as a result of court-martial sentence. However, this period is not annotated on the DD Form 214 block 29, dates of time lost during this period. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); Catholic Health System medical documents (two pages); and patient movement record (two pages). 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 III establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and 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 the characterization of service from bad conduct 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 seeks relief contending, he was treated unfairly after his injury in Iraq. Although the applicant alleges that he was treated unfairly after his injury in Iraq, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant's contentions were carefully considered regarding; he was accused of being AWOL but in actuality he was in the hospital at home while on leave; after his condition was stable, he reported back to his unit and became severely sick again (diabetes); because his illness was diagnosed by a civilian hospital in his hometown and not by the hospital where he was stationed, he was not prescribed medication; his health was rapidly deteriorating and he desperately needed medication, so he went back home to the original hospital that treated him; and he was again accused of AWOL and as a result discharged. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support these contentions. There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that he was not officially AWOL for the periods he was court-martialed. 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 judicial due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None. b. The applicant presented the following additional contention(s): None. c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 27 August 2018, and by a 5-0 vote, the Board, after carefully examining the applicant's record of service during the period of enlistment under review and all other evidence presented, determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, severe family matters and post-service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions 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 AR20170007741 3