1. Applicant's Name: a. Application Date: 10 April 2017 b. Date Received: 21 April 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, made some mistakes and has learned from those mistakes. The applicant requests an upgrade to obtain better employment and possibly get the medical and mental healthcare from the VA. The applicant received an honorable discharge from the Army National Guard and could have been a better Soldier. In a records review conducted at Arlington, VA on 16 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 March 2006 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 22 February 2004, the applicant was found: Charge I, Article 112: The applicant was, at or near Walter Reed Army Medical Center, Washington, DC on or about 5 February 2004, found drunk while on duty as a Soldier on flag detail. Plea: Not Guilty. Finding: Guilty. Charge II, Article 91, three specifications: Specification 1: The applicant did, at or near Walter Reed Army Medical Center, Washington, DC, on or about 5 February 2004, was disrespectful in language toward SGT G, a noncommissioned officer, then known by the applicant to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him "fuck you, you mother fucker," or words to that effect. Plea: Guilty. Finding: Guilty. Specification 2: The applicant did, at or near Walter Reed Army Medical Center, Washington, DC, on or about 5 February 2004, was disrespectful in language toward SFC W, a noncommissioned officer, then known by the applicant to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him "fuck you," or words to that effect. Plea: Guilty. Finding: Guilty. Specification 3: The applicant did, at or near Walter Reed Army Medical Center, Washington DC, on or about 5 February 2004, unlawfully strike, SFC W, a superior noncommissioned officer, then known to the applicant to be a superior noncommissioned officer who was then in the execution of his office by striking him on the nose with his fist. Plea: Not Guilty. Finding: Dismissed on motion of Trial Counsel. Charge III, Article 128, five specifications: Specification 1: The applicant, did, at or near Walter Reed Army Medical Center, Washington, DC, on or about 5 February 2004, unlawfully strike SPC N in the eyes with his fingers. Plea: Not Guilty. Finding: Dismissed on motion of Trial Counsel. Specification 2: The applicant, did, at or near Walter Reed Army Medical Center, Washington, DC, on or about 5 February 2004, unlawfully kick PFC D in the chest with his foot. Plea: Guilty, except the word "kick," substituting therefore the word "push." To the excepted word, Not Guilty; to the substituted word, Guilty. Finding: Guilty, except the word "kick," and substituting therefore the word "push." To the excepted word, Not Guilty; to the substituted word, Guilty. Specification 3: The applicant, did, at or near Walter Reed Army Medical Center, Washington, DC, on or about 21 February 2004, assault Officer S, who then was and was then known by the applicant to be a person then having and in the execution of Department of the Army civilian law enforcement duties, by striking him on the right side of his face with a closed fist. Plea: Guilty. Finding: Guilty. Specification 4: The applicant, did, at or near Walter Reed Army Medical Center, Washington, DC, on or about 21 February 2004, assault Officer P, who then was and was then known by the applicant to be a person then having and in the execution of Department of the Army civilian law enforcement duties, by kicking him repeatedly. Plea: Not Guilty. Finding: Not Guilty. Specification 5: The applicant, did, at or near Walter Reed Army Medical Center, Washington, DC, on or about 21 February 2004, assault Officer D, who then was and was then known by the applicant to be a person then having and in the execution of Department of the Army civilian law enforcement duties, by kicking him repeatedly. Plea: Not Guilty. Finding: Not Guilty. Charge IV, Article 134, two specifications: Specification 1: The applicant, was at or near Walter Reed Army Medical Center, Washington, DC, on or about 05 February 2004, drunk and disorderly. Plea: Guilty. Finding: Guilty. Specification 2: The applicant, was at or near Walter Reed Army Medical Center, Washington, DC, on or about 21 February 2004, drunk and disorderly. Plea: Guilty. Finding: Guilty. Additional Charge I. Article 86, two specifications: Specification 1: The applicant, did at or near Walter Reed Army Medical Center, Washington, DC, on or about 4 February 2004, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 formation at the bubble adjacent to building 14. Plea: Guilty. Finding: Guilty. Specification 2: The applicant, did at or near Walter Reed Army Medical Center, Washington, DC, on or about 17 February 2004, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0730 formation at the bubble adjacent to building 14. Plea: Guilty. Finding: Guilty. Additional Charge II, Article 92: The applicant, having knowledge of a lawful order issued by COL H not to drink alcoholic beverages, an order which it was his duty to obey, did at or near Walter Reed Army Medical Center, Washington, DC, on or about 20 February 2004, fail to obey the same by wrongfully drinking alcoholic beverages. Plea: Not Guilty. Finding: Dismissed on motion of Trial Counsel. Additional Charge III, Article 134, two specifications: Specification 1: The applicant, did at or near Walter Reed Army Medical Center, Washington, DC, a place under exclusive or concurrent federal jurisdiction, on or about 5 February 2004, drink alcoholic beverages while under the age of 21, in violation of DC Code 25-1002(a) of the District of Columbia assimilated into Federal law by 18 U.S. Code Section 13. Plea: Guilty. Finding: Guilty. Specification 2: The applicant, did at or near Walter Reed Army Medical Center, Washington, DC, a place under exclusive or concurrent federal jurisdiction, on or about 21 February 2004, drink alcoholic beverages while under the age of 21, in violation of DC Code 25- 1002(a) of the District of Columbia assimilated into Federal law by 18 U.S. Code Section 13. Plea: Guilty. Finding: Guilty. Additional Charge IV. Article 86: The applicant, did at or near the Quantico Confinement Facility, Quantico, VA, on or about 19 April 2004, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0500 duty as messman on the mess deck. Plea: Guilty. Finding: Guilty. Additional Charge V, Article 117: The applicant, did, at or near the Quantico Confinement Facility Quantico, on or about 1 May 2004, wrongfully use provoking and reproachful words, to wit: "Get the fuck off my case, bitch"; "You didn't hear me the first time you stupid fucking ass, I said get the fuck off my case"; and "That's right you fucking bitch you can't do shit to me" toward Lance Corporal W, U.S. Marine Corps. Plea: Not Guilty. Finding: Dismissed on motion of Trial Counsel. Additional Charge VI, Article 128: The applicant, did at or near the Quantico Confinement Facility, Quantico, on or about 25 May 2004, unlawfully strike PFC L two times on the right side of his torso and once on the head with a closed fist. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Confinement for a period of 8 months; to forfeit $938 pay per month for 8 months; and to be discharged from the service with a Bad-Conduct Discharge. The accused will be credited with 175 days of pretrial confinement credit against the applicant's term of confinement. (3) Date/Sentence Approved: 22 February 2005 / only so much of the sentence as provides for confinement for seven months, forfeiture of $794.00 pay per month for eight months, and a bad-conduct discharge was approved and, with the exception of the bad-conduct discharge, will be executed. The applicant was be credited with 175 days of confinement credit against the sentence to confinement. He was also credited with all confinement served from the initial date of his sentence until his release. (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: 24 January 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 June 2003 / 3 years b. Age at Enlistment / Education / GT Score: 19 / GED / 98 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 3 years, 7 months, 29 days d. Prior Service / Characterizations: ARNG, 15 January 2002 - 2 June 2003 / HD IADT, 29 July 2002 - 14 November 2002 / UNC (Concurrent Service) e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: NDSM, 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 "Confined by Military Authorities (CMA)" effective 23 February 2004; and, From "CMA" to "PDY," effective 20 August 2004. i. Lost Time / Mode of Return: 179 days CMA, 23 February 2004 - 16 August 2004 / Released from Pretrial Confinement CMA, 17 August 2004 - 19 August 2004 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 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 a general (under honorable conditions) discharge. 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 an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. The applicant contends that an upgrade of his discharge would allow veteran's benefits. However, veteran's benefits do 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 in the Army National Guard. 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 16 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 AR20170009601 1