1. Applicant's Name: a. Application Date: 11 May 2017 b. Date Received: 22 May 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of a bad conduct discharge to honorable, a narrative reason change and a reentry (RE) code change. The applicant seeks relief contending, in effect, the applicant undoubtedly violated the UCMJ by going AWOL and remaining so, but the mitigating and extenuating circumstances behind the misconduct was not available during the courts-martial. The applicant's exceptional devotion to family, academic success, and vocational successes demonstrate maturity since the misconduct and now deserves to be given a second chance. The applicant does not deny guilt in terms of the extended period of AWOL. The applicant was only 17 years old when the applicant's pregnant wife gave an ultimatum of choosing between the Army and family. Given the applicant's youth, concern for family, and naiveté, the applicant chose to go AWOL from the Army and remain at home. Despite the applicant's guilt in violating the UCMJ, it is respectfully submitted that the Bad Conduct Discharge was unduly harsh when the totality of the circumstances are evaluated, in addition to the applicant's exceptional character. Since being discharged, the applicant's outstanding character has continued to shine. The applicant continues to grow and has excelled as a family man, student, and employee. The applicant was married in September 2012 and provides for four children. The applicant graduated from the YTI Lancaster Campus on 12 November 2013, with a 4.0 GPA and was recognized for both being an honor roll student and for maintaining perfect attendance while earning an Associate's Degree in Criminal Justice. The applicant provides evidence with the application of true character from the various people that have drafted character references on the applicant's behalf. In a records review conducted at Arlington, VA on 23 January 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: 10 May 2010 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 16.1, dated 23 April 2009, on 5 November 2008, the applicant was found guilty of violating Article 85, UCMJ, for: on or about 14 March 2005, without authority, and with intent to remain away therefrom permanently, absent himself from his unit, and did remain so absent in desertion until he was apprehended on or about 10 July 2008. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Confined for four months and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 5 November 2008 / only so much of the sentence, a 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. The applicant was credited with 1 day 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: NIF / Orders 119-1302, dated 29 April 2010, reflects the applicant was reassigned to the transition point and discharged from Army, effective 10 May 2010. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 8 September 2004 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / 2 years, 1 day, 2 months d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA 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 "Absent Without Leave (AWOL)," effective 14 March 2005; and, From "AWOL" to "Dropped From Rolls (DFR)," effective 21 April 2005. i. Lost Time / Mode of Return: 3 years, 7 months AWOL, 14 March 2005 - 10 July 2008 / Apprehended by Civil Authorities Confined by Military Authorities, 5 November 2008 - 8 February 2009 / Released to Military Control j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with allied legal brief and all listed enclosures. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provides evidence that he continues to grow and has excelled as a family man, student, and employee. He married and provides for his four children; and, he earned his Associate's Degree and was recognized being an honor roll student and for maintaining perfect attendance. 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial, Other. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his bad conduct discharge to honorable, a change to the narrative reason for separation and a RE code change. 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 he was young and immature at the time of the discharge. 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. The applicant believes the narrative reason for the discharge should be changed because it was unfair. However, the applicant was separated under the provisions of Chapter 3, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Court-Martial (Other)," and the separation code is "JJD." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends his RE code should be changed. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. 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 23 January 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 AR20170008872 4