1. Applicant's Name: a. Application Date: 20 February 2018 b. Date Received: 28 February 2018 c. Previous Records Review: 2 December 2016, AR20150015098 d. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of bad conduct discharge to general (under honorable conditions) or honorable and a change to the narrative reason for separation. The counsel on behalf of the applicant seeks relief contending and presenting, in pertinent part and in effect, the details of the applicant's in-service achievements and accomplishments. The counsel further presented an argument necessary to correct an error or remove an injustice resulting from discharge and post-service accomplishments. The counsel states, in effect, that the applicant led an extraordinary life since discharge. The applicant fought to regain a standing professionally and to serve others in the community. Therefore, in light of the significant personal achievements and service to others since separation, it would be a material injustice to allow the Bad Conduct Discharge to continue to impact the applicant's future. The narrative reason for separation should be changed from Court-Martial, Other to Miscellaneous. The applicant has never denied culpability in the choices made while in service to the US Army, and on the contrary, pled guilty and accepted the consequences bravely. Since separation, the applicant worked tirelessly to improve oneself both professionally and personally. The applicant's good moral character is unquestionable and is demonstrated by the letters of support provided by employers and peers. The decisions the applicant made in the past continue to haunt the applicant personally and on a professional level-they are an immense impediment to career opportunities and potential for growth. It is unjust to continue to punish the applicant for choices made almost a decade ago and to ignore the significant strides made since. In a personal appearance hearing conducted at Arlington, VA on 28 January 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: 11 July 2008 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 7, dated 7 June 2007, the applicant was found guilty of the following charges: Charge I: two specifications of violating Article 92, UCMJ: Specification 1: violating a lawful general regulation, Fort Leonard Wood Regulation 350-6, dated 17 July 2002, paragraph 11-3(e), between 14 August 2006 and 12 September 2006, by wrongfully engaging in a personal and social relationship with a trainee, PVT X., to include engaging in sexual touching, oral sex, sexual intercourse; having oral and written personal and personal telephonic conversations; exchanging personal telephonic text messages; and by wrongfully transporting the trainee in a POV. Specification 4: violating a lawful general regulation, Fort Leonard Wood Regulation 350-6, dated 17 July 2002, paragraph 11-3(a), on divers occasions between 14 August 2006 and 15 September 2006, by wrongfully making verbal degrading and sexually slanted comments in reference to the trainee PVT X., in presence of four other trainees, and further at a platoon formation. Charge III: Violation of Article 107, UCMJ, for making a false official statement to CPT X on 14 September 2006. Charge IV: Violation of Article 125, UCMJ, for committing sodomy with PVT X on divers occasions between 14 August 2006 and 12 September 2006. Charge V: two specifications of violating Article 134, UCMJ: Specification 1: wrongfully having sexual intercourse as a married man with PVT X, a woman not his wife on 2 September 2006. (2) Adjudged Sentence and Date: Reduction to E-3, to be confined for eight months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 4 December 2006. (3) Date Sentence Approved: On 7 June 2007, only so much of the sentence that provided for reduction to the grade of E-3, confinement for four 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 38, dated 28 February 2008, the promulgated findings and sentence of SPCM Order No. 7, dated 7 June 2007, and as corrected by Notice of Court-Martial Order Correction, dated 4 October 2007, had finally been affirmed on 4 October 2007, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 28 February 2008 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 June 2005 / 6 years b. Age at Enlistment / Education / GT Score: 29 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-7 / 74D1P, 2B Chemical Operations Specialist and 13B10, Cannon Crewmember / 10 years, 6 months, 5 days (includes 474 days of involuntary excess leave, creditable for all purposes except pay and allowances from 26 March 2007 to 11 July 2008) d. Prior Service / Characterizations: RA (15 September 1997 to 27 September 1999) / HD RA (28 September 1999 to 19 June 2002) / HD RA (20 June 2002 to 20 June 2005) / HD e. Overseas Service / Combat Service: Korea / None f. Awards and Decorations: ARCOM-4; AAM-5; AGCM-2; NDSM; GWOTSM; KDSM; NCOPDR-3; ASR; OSR; MOVSM g. Performance Ratings: Three NCOERs rendered during period of service under current review: February 2005 thru August 2005, Among the Best 1 September 2005 thru 31 August 2006, Among the Best 1 September 2006 thru 16 December 2006, RFC, Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders No. 7, dated 7 June 2007, and No. 38, dated 28 February 2008, described at the preceding paragraphs 3c(1)-(3), and 3c(4), respectively. United States Army Court of Criminal Appeals, dated 4 October 2007, provided notice of court-martial order correction, pertaining to SPCM No. 7, dated 7 June 2007. United States Army Court of Criminal Appeals, dated 4 October 2007, affirmed the findings of guilty and sentence. United States Court of Appeals for the Armed Forces, Order Denying Petition, dated 31 January 2008 is self-explanatory. i. Lost Time / Mode of Return: 111 days (Military Confinement: from 4 December 2006 to 25 March 2007) / The applicant was released from confinement upon completion of his sentence. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 28 August 2015, with attorney-authored brief; two enlistment documents 15 September 1997 and 28 September 1999; DD Form 214 and discharge orders; SPCM Order No. 7; Notice of Court-Martial Order Correction; SPCM Order No. 38; USA Court of Criminal Appeals Decision; two applicant-authored statements; Master of Healthcare Administration diploma; applicant's resume; six character reference statements; eight NCOERs; two promotion orders; Order Denying Petition; Court of Criminal Appeals Decision; Notice of Court-Martial Order Correction; two DA Form 4187 (Personnel Actions); SGLI; Record of Emergency Date; ERB; second resume; VA Performance Appraisal; previous records review (AR20150015098) with application; and certificate of achievement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, in effect, since his discharge, he participated in the training the Armed Forces of Liberia while employed as a contractor under the leadership of the State Department. He was later employed as an hourly associate with Wal-Mart, and he was promoted to as Assistant Manager in 2011, followed by being selected to assist with one of Walmart high shrink store, which became one of the best store in the market. In 2010, he received a bachelor degree as Cum Laude graduate, and in 2015, he graduated with obtaining Masters in Health Administration. He has volunteered as a jail ministry since 2007. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions) or honorable and to change the narrative reason for his separation. 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. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization 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 third party statements provided with the application speak highly of the applicant's character and performance. 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. 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 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 28 January 2019, and by a 5-0 vote, the Board denied clemency upon finding the separation was both proper and equitable. 11. 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 AR20180003241 6