1. Applicant's Name: a. Application Date: 3 August 2017 b. Date Received: 25 August 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of bad conduct discharge to honorable and a narrative reason change. The applicant seeks relief contending, in effect, the alleged crime, which was never proven to occur beyond a reasonable doubt and was unfairly prosecuted. The use of profiling and discrimination are found within the record of trial along with what could be considered racism. The legal representation on the applicant's behalf failed to convey voice on the matter stating that the applicant initiated contact with the alleged victim and convincing that this course of action would grant the most relief. In retrospect, the defense pressured the applicant into an admission of guilt and plea for the lesser charges. The applicant states, the appeal was denied after the convening authority did not take action within the allotted time. The length of the delay accompanied with lack of reasoning for the delay demonstrates the disregard for the right to a timely review, which should have warranted relief. The second appeal was also denied. The applicant states, the actions taken by the command leading up to the incident were unscrupulous in nature. The incident occurred after recommendations to the command against putting non-security trained personnel in the vicinity of classified documents and personal identifiable information. The alleged victim was also housed in the building where the applicant resided on the same floor across the hall making her the only female in that wing. The overall effect of the circumstances has been cruel and unusual. The applicant was engaged at the time of the incident and was married just before the court-martial. Due to the change in pay and possible missing paperwork a statement of over payment and a debt was created in the applicant's name causing more strain on the situation. The applicant's education benefits have been reduced after full benefits were originally granted generating more debt. The applicant was on active duty longer than the original contract with two years of non-payment due to an administrative separation after the court-martial. The applicant could not qualify for unemployment without a DD Form 214 and found it difficult to gain employment due to the pending false charges and jail time. In a records review conducted at Arlington, VA on 13 August 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: 14 October 2016 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 52, dated 27 September 2016, on 7 August 2014, the applicant was found guilty of the following: Charge I, in violation of Article 128: Specification 1: The applicant, did at or near Fort Hood, Texas, on or about 31 January 2014, commit sexual contact upon SPC X, to wit: touched SPC X breast with an intent to arouse and gratify his sexual desire, thereby causing bodily harm to SPC X. Specification 2: The applicant, did at or near Fort Hood, Texas, on or about 31 January 2014, commit a battery upon SPC X, to wit: grab her around her lower back with his hand, thereby causing bodily harm to SPC X, in violation of Article 128, UCMJ. (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: 7 August 2014 / only so much of the sentence, a reduction E-1, confinement for 15 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: 27 September 2016 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 March 2010 / 6 years b. Age at Enlistment / Education / GT Score: 21 / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 25B10, IT Specialist / 8 years, 1 months, 4 days d. Prior Service / Characterizations: RA, 27 August 2008 -16 March 2010 / HD e. Overseas Service / Combat Service: Korea, SWA / Iraq (16 July 2009 - 16 July 2010) f. Awards and Decorations: AAM-2, NDSM, GWOTSM, KDSM, ICM-CS, NCOPDR, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. CID Report of Investigation - 1ST Corrected Final, dated 15 April 2014, reflects an investigation established probable cause to believe the applicant committed the offenses of Abusive Sexual Contact and Communicating a Threat when he touched SPC X breast without her consent and threatened her after she pushed him out of her room. Military Police Report, dated 14 May 2012, reflects the applicant was apprehended for: Fail to obey General Order (Off-Limits Area) (Off Post). 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 7 August 2014; and, From "CMA" to "PDY," effective 21 August 2014. i. Lost Time / Mode of Return: 13 days (CMA, 7 August 2014 - 20 August 2014) / Released from confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to honorable and a change to the narrative reason for separation. 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 charges against him were not proven beyond a reasonable doubt; his legal counsel failed to convey his voice; and, he was unfairly tried. He contends his command's actions prior to the court-martial were unscrupulous and was cruel and unusual. 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 court-martial process. The character of the applicant's discharge is commensurate with his overall service record. The applicant believes the narrative reason for the discharge should be changed. 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 the use of profiling and discrimination are found within the record of trial along with what could be considered racism; 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. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. The applicant contends that he unfairly occurred debt and was held on active duty longer than his enlistment, which caused him hardships. However, the applicant's requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. 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 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 August 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 AR20170012902 2