1. Applicant's Name: a. Application Date: 9 April 2018 b. Date Received: 16 April 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of a bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, since the actions that led to discharge, the applicant has been fully rehabilitated and has learned the error of previous decision. At the time, the applicant was somewhat young and immature, but has grown into a more stable minded adult. The applicant states, the charges, after an appellate review, were downgraded from a felony status to a misdemeanor status. The applicant is now becoming a new father and would love a second chance at making the most of life and presenting a positive role model for the unborn son. It has been four years since the issue first occurred, which has been plenty of time for the applicant to become a productive upstanding citizen. The applicant would like to provide a better life for the unborn child and having this cloud of past mistakes and decisions absolved, would make the remaining journey and obstacles more manageable. 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 Adjustment Disorder with Disturbance of Emotions and Conduct, Paranoid Personality Disorder, Cannabis Abuse by History, and Partner Relational problem. The VA has diagnosed the applicant with Major Depressive Disorder, Severe (MDD). In summary, the applicant did 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 29 May 2019 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: 30 January 2015 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 23, dated 26 August 2013, on 26 August 2013, the applicant was found guilty of the following: Charge I. Article 81. Plea: Guilty. Finding: Guilty. The Specification: On or about 25 October 2011, at or near Fort Bliss, Texas, the applicant conspire with Specialist D.W. to commit an offense under the UCMJ, to wit: larceny of funds, of a value greater than $4,000.00, the property of the United States, and in order to effect the object of the conspiracy the said accused did receive stolen gas card. (After arraignment but before entry of pleas, The Specification of Charge I was amended by changing the words and figures, "of a value greater than $4.000.00" to instead reflect "some value". Also, the word "a" was added before the words "stolen gas card.") Plea: Guilty as amended. Finding: Guilty as amended. Charge II. Article 121. Plea: Guilty: Finding: Guilty. Specification 1: Between the dates of on or about 26 October 2011 and on or about 30 November 2011, on divers occasions, at or near Fort Bliss, Texas; at or near Odessa, Texas, at or near Mesquite, Texas, at or near Vicksburg, Mississippi, at or near Lincoln, Alabama, at or near Augusta, Georgia, at or near Charleston, South Carolina, at or near Lithonia, Georgia, at or near Brandon, Mississippi, at or near Dallas, Texas, at or near Midland, Texas, and at or near Las Cruces, New Mexico, the accused, did, steal funds, military property, of a value greater than $4,000.00, the property of the United States. (After arraignment but before entry of pleas, Specification 1 of Charge II was amended by changing the amount from $4,000.00 to $500.00.) Plea: Guilty as amended. Finding: Guilty as amended. Specification 2: On or about 2 December 2011, at or near Fort Bliss, Texas, the accused, did, steal a credit card, military property, of a value less than $500.00, the property of the United States. Plea: Guilty. Finding: Guilty. Specification 3: Between on or about 2 December 2011 and on or about 10 January 2012, at or near Fort Bliss, Texas, the accused, did, steal funds, military property, of a value greater than $6,500.00, the property of the United States. (After arraignment but before entry of pleas, Specification 3 of Charge II was amended by changing the amount from $6,500.00 to $500.00.) Plea: Guilty as amended. Finding: Guilty as amended. Charge III. Article 134. Plea: Guilty. Finding: Guilty. Specification 1 (Should have been re-designated as "The" Specification of Charge III): On or about 25 October 2011, at or near Fort Bliss, Texas, the accused, did, wrongfully receive a credit card, of a value less than $500.00, the property of the U.S. military, that the said accused then knew had been stolen, which conduct, under the circumstances, was prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. Plea: Guilty. Finding: Guilty. (2) Adjudged Sentence: Reduction to E-1; to be confined for seven months, forfeiture of $1,200 pay for seven months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 26 August 2013 / only so much of the sentence, a reduction E-1, confinement for six months, forfeiture of $1,200 pay for seven 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: 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: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 23 June 2010 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 90 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 4 years, 2 months, 22 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AGCM, NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. 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 23 May 2013; and, From "CMA" to "PDY," effective 9 October 2013. i. Lost Time / Mode of Return: 138 days (CMA, 23 May 2013 - 8 October 2013) / Released from CMA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; email. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has become a productive upstanding citizen. 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 an upgrade of his bad conduct discharge to a general (under honorable conditions) discharge. 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 the charges against him, after an appellate review, were downgraded from felony charges to misdemeanor charges. However, the applicant did not provide and the record is void of the appellate review. Further, the appellate review is part of the normal judicial proceedings and does not indicate any 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 contends that he was very young and immature at the time. The record confirms the applicant's youth at the time of enlistment and an apparent lack of maturity. The record also shows the applicant's discrediting entries were incidents of a minor nature. While the applicant's misconduct and poor duty performance were a clear departure from acceptable Army standards, it appears the offenses were partially mitigated by youth and immaturity. 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 applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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 29 May 2019 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 AR20180008973 1