1. Applicant's Name: a. Application Date: 15 September 2017 b. Date Received: 2 October 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of an under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in pertinent part and in effect, needs help with medical care. The applicant is homeless due to mental health issues. The applicant was unjustly discharged and incarcerated. The applicant was not properly reintegrated as a civilian. The applicant was severely punished for messing up and without proper documentation. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate no notes while on active duty. VA records do not reflect a BH diagnosis or service-connected rating for the applicant. The applicant did not provide any civilian documentation to support a BH diagnosis. In summary, the applicant does not have a BH diagnosis that is mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 26 April 2019, and by a 5-0 vote, the Board denied clemency 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: 17 February 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 32, dated 7 June 2004, the applicant was found guilty of the following charges: Charge I: Violations of Article 86, UCMJ, three specifications of failing to go to his appointed place of duty at the prescribed time on three separate occasions on 6 April 2003, 9 April 2003, and 10 April 2003. Charge II: Violations of Article 112a, UCMJ, two specifications of wrongfully using marijuana on two separate occasions between 26 October 2002 and 25 November 2003 (sic), and between 10 March 2003 and 9 April 2003. Additional Charge: Violations of Article 112a, UCMJ, three specifications of wrongfully using marijuana on three separate occasions between 16 September 2002 and 15 October 2002, between 13 October 2002 and 12 November 2002, and between 15 December 2002 and 14 January 2003. (2) Adjudged Sentence and Date: To be confined for five months, to forfeit $767 pay per month for five months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 8 July 2003. (3) Date Sentence Approved: On 10 July 2003, only so much of that part of the sentence adjudging confinement in excess of three months was suspended for three months, 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: According to Special Court-Martial Order 232, dated 9 December 2005, the promulgated findings and sentence of Corrected Special Court-Martial Order No. 32, dated 7 June 2004, had finally been affirmed on 12 August 2005, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 9 December 2005 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 June 2002 / 3 years b. Age at Enlistment / Education / GT Score: 23 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 3 years, 6 months, 1 day d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order No. 232, dated 9 December 2005, US Army Court of Criminal Appeals Decision, dated 12 August 2005, and Corrected Copy of Special Court-Martial Order No. 32, dated 7 June 2004, described at the preceding paragraphs 3c(1)-(5). i. Lost Time / Mode of Return: 73 days (Military Confinement on 8 July 2003 to 18 September 2003) / The applicant was released upon completing his court-martial sentence of confinement. j. Diagnosed PTSD / TBI / Behavioral Health: VA Form 21-4138 (Statement in Support of Claim), dated 15 September 2017, indicates at the final page that the applicant was in treatment with his mental health provider. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 15 September 2017, and VA Form 21-4138 (Statement in Support of Claim), dated 15 September 2017. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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 imposed. 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. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions). The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms there was full consideration of all faithful and honorable service, as well as, the misconduct incidents. 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 Army Discharge Review Board (ADRB) 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. 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 the charge 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. The applicant contends he needs medical care. His contentions were carefully considered. However, a careful review of the available record and the applicant's documentary evidence does not provide diagnoses of any behavioral health issues or any medical condition. However, if based on the available record, there is evidence that behavioral health issues symptoms existed, and if the Board determines the applicant's behavioral health issues were significant contributing factors to his misconduct, it can grant appropriate clemency by changing the characterization of service. If the applicant desires a personal appearance hearing, it would be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., diagnoses of behavioral health issues by competent medical authority), for the Board's consideration because they are not available in the official record. The applicant contends that he is currently homeless and needs help. However, eligibility for housing supportive program benefits for Veterans 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. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. The applicant contends the discharge was unjust because he was unjustly incarcerated; he was not properly reintegrated as a civilian; and he was severely punished for messing up and without proper documentation. 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 his issues. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for clemency. The available 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 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 26 April 2019, and by a 5-0 vote, the Board denied clemency 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 AR20170019287 5