1. Applicant's Name: a. Application Date: 3 January 2018 b. Date Received: 8 January 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests a change of a bad conduct discharge. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge the Army Discharge Review Board will consider the applicant for a possible upgrade to honorable. The applicant seeks relief contending, in effect, that the applicant is trying to better life and be a better person and does not want to look bad in the Army with a bad conduct discharge. At the time of discharge, the applicant was young and not as wise as the applicant is now about the Army. 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 diagnoses of Alcohol Abuse and Phase of Life Problem. The applicant's VA records only contain DoD content. 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 17 April 2020, 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: 31 October 2012 c. Separation Facts: (1) Pursuant to Special Court Martial Empowered to Adjudge a Bad Conduct Discharge: NIF (2) Adjudged Sentence: On 31 August 2011, the applicant was sentenced to be reduced to the grade of E-1, forfeiture of $978 pay per month for five months, to be confined for 90 days, and to be separated from the service with a bad-conduct discharge. (3) Date/Sentence Approved: The sentence was approved, and except for the part of the sentence extending to a bad-conduct discharge was executed. (4) Appellate Review: The record of trial was forwarded to The Judge Advocated General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the remaining finding of guilty. The applicant was credited with 13 days of confinement against the sentence to confinement. The portion of the sentence extending to confinement having been served. Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed. (5) Date Sentence of BCD Ordered Executed: 23 July 2012 4. SERVICE DETAILS: a. Date / Period of Enlistment: 3 October 2005 / 3 years, 19 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 84 c. Highest Grade Achieved / MOS / Total Service: E-2 / 11B10, Infantryman / d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders as described in previous paragraph 3c(2) Report of Return of Absentee, dated 28 January 2011, indicates the applicant was apprehended by civilian authorities and returned to military control on 28 January 2011 after going AWOL on 21 February 2006. Four Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective (21 February 2006); From "AWOL" to "Dropped From Rolls (DFR)," effective (24 March 2006); From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective (31 August 2011) From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective (31 October 2011) i. Lost Time / Mode of Return: AWOL 1,682 days (21 June 2006 to 27 January 2011) / mode of return apprehension; and Military Confinement as a result of Special Court-Martial 61 days (31 August 2011 to 30 October 2011). The DD Form 214 under review also makes reference to 358 days of excess leave (9 November 2011 to 31 October 2012). j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 in lieu of 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 a change of his bad conduct discharge. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge the Army Discharge Review Board will consider the applicant for a possible upgrade to honorable The applicant's available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 3, Section III, by reason of court-martial, other, with a characterization of service of bad conduct. Barring evidence to the contrary, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the DD Form 214 shows a Separation Code of JJD (i.e., court-martial, other, with a reentry eligibility (RE) code of 4. The partial documents found in the record show 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. If the applicant desires a personal appearance hearing, it is his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full judicial due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 17 April 2020, 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 AR20180004365 4