1. Applicant's Name: a. Application Date: 26 August 2017 b. Date Received: 7 September 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) and an reentry (RE) code change. The applicant seeks relief contending, in effect, believes that the overall service record, including enlisted performance reports, rate of promotions, awards, decorations and achievements, supporting evidence, along with the testimonies of fellow service members and the consensus amongst them show that the applicant's character of service was under honorable conditions. The applicant states the narrative reason assigned for discharge is inequitable. The evidence reflects, the applicant was treated more harshly than contemporaries for far less of an error, allegedly. The service record reflects that the only deficiency was an aberration, and one with outstanding mitigating factors. The applicant maintains a commitment to serve and a deep seated sense of patriotic duty. The applicant requests the Board grant relief in the form of changing the RE code to one that will not bar the applicant from reentry in the military. The applicant further details contentions in a self- authored statement. In a records review conducted at Arlington, VA on 12 April 2019, and by a 3-2 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, and a prior period of honorable service. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to under other than 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: 7 November 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 3, dated 28 February 2014, the applicant was found guilty of the following: two specifications, of violating Article 86, UCMJ, for being AWOL; and, violation of Article 112a, UCMJ, for wrongful use, possession, etc., of controlled substance. (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: 9 October 2013 / 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 50 days 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: 9 October 2014 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 August 2012 / 3 years b. Age at Enlistment / Education / GT Score: 27 / GED / 110 c. Highest Grade Achieved / MOS / Total Service: E-5 / 13B10, Cannon Crewmember / 5 years, 1 month, 1 day / The applicant's DD Form 214, blocks 12a, Date Entered AD This Period and block 12d, Total Prior Active Service, are in error. The correct date in block 12a should read 7 January 2010; and, the correct entry in block 12d should read: 6 months, 7 days. d. Prior Service / Characterizations: USAR, 27 February 2009 - 6 January 2010 / HD AD, 14 April 2009 - 20 October 2009 / HD (Concurrent Service) e. Overseas Service / Combat Service: SWA / Afghanistan (4 January 2011 - 24 December 2011) f. Awards and Decorations: ACM-2CS, ARCOM, AAM, MUC, NDSM, ASR, OSR, NATOMDL g. Performance Ratings: NIF h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Twelve Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 6 November 2012; From "AWOL" to "Dropped From Rolls (DFR)," effective 6 December 2012; From "DFR," to "Confined," effective 9 February 2013; From "Dropped From Rolls (DFR) (Deserter)," to "PDY," effective 26 February 2013; From "PDY" to "AWOL," effective 28 February 2013; From "PDY" to "DFR," effective 28 February 2013; From "AWOL" to "Confined," effective 9 May 2013; From "Confined" to "DFR," effective 28 May 2013; From "Confined by Civil Authorities (CCA)" to "AWOL," effective 3 June 2013; From "DFR" to "PDY," effective 30 July 2013; From "Confinement," to "PDY," effective 16 August 2013; and, From "PDY" to "CMA," effective 9 October 2013. Department of Defense Report of Result of Trial, dated 9 October 2013, reflects the applicant was charged with: Violation of Article 86, AWOL (x2); and, Article 112a, Wrongful use, possession, etc., of controlled substance. The applicant was sentenced to: reduction to the grade of Private; confinement for 60 days; and, to be discharged with a Bad Conduct Discharge. i. Lost Time / Mode of Return: 7 months, 8 days AWOL, 6 November 2012 - 23 February 2013 / Apprehended by Civil Authorities AWOL, 28 May 2013 - 29 July 2013 / Apprehended by Civil Authorities Confinement, 20 August 2013 - 9 October 2013 / Appellant Leave j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Two DD Forms 214; DD Form 293; cover letter; case summary; notarized personal statement; brief of military police; transcript of Special Court- Martial; Police Record; and, ERB. 6. POST SERVICE ACCOMPLISHMENTS: The applicant provided evidence reflecting he has no local criminal record. 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 requests an upgrade of his bad conduct discharge to general (under honorable conditions) and a reentry (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 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 that other Soldiers with similar offenses were not discharged. However, the method in which another Soldier's case was handled is not relevant to the applicant's case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. The applicant contends that he had good service which included a combat tour. 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 applicant contends had he not been falsely accused, then there would not have been any subsequent misconduct. 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 his overall service record. The applicant desires to rejoin the Military Service. 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 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 12 April 2019, and by a 3-2 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, and a prior period of honorable service. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to under other than honorable conditions. A change in the reason for discharge is not authorized under Federal statute. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than Honorable 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 AR20170017679 1