1. Applicant's Name: a. Application Date: 9 May 2018 b. Date Received: 17 May 2018 c. Counsel: 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, is not the same young naive individual from 2003, who joined the military without responsibility or care for oneself and actions. During the time of enlistment, the applicant was a young impressionable young man, separated from family, who kept bad company, which negatively influenced the applicant. The applicant began using to cope with feelings of stress and anxiety and depression, which worsened with continued substance abuse. The heavier the drinking and drug use became the deeper life spiraled out of control. As the applicant experienced this, the applicant needed help, but carried so much shame about the behavior, the applicant became afraid to ask for help. The lack of control and depression became such destructive downward spiral that the applicant contemplated suicide on several occasions. The applicant hit rock bottom when the applicant lost a military career and was incarcerated for seven months. Every day the applicant consciously makes the choices to empower oneself and not go back to using. The applicant knows that this life is what the family and applicant deserves and is why the applicant has chosen to request an upgrade and help turn a negative situation into a positive life lesson for the applicant and family. Since discharge, the applicant has grown in leaps and bounds, has also paid the price for the poor choices and substance abuse during the time in the military. The applicant is now grounded by faith and has strong ties in the community to include wife and child. The selfish individual who once thought the actions affected no-one now lives and thrives on the greater good of family and community. Upon release, the applicant continued to struggle with substance abuse, but knew the applicant was a different man, from all that was endured and went through during the time in the military. The applicant desperately sought change, but it was difficult due to the mental state of depression, anxiety and the shame one carried from not completing the military obligation nor receiving an honorable discharge. Eventually the applicant found a program called New Horizons, which is a faith based non-profit organization where the applicant received the necessary assistance to cope with substance abuse, and return to faith. After successfully completing the programs, the applicant has since been sober from all substance abuse, attained gainful employment and God has blessed the applicant with a family of one's own with a healthy child. In a records review conducted at Arlington, VA on 4 December 2019, and by a 3-2 vote, the Board determined that clemency is warranted. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to under other than honorable. 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: 31 August 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 5, dated 13 January 2005, on 30 June 2004, the applicant was found guilty of the following: Charge I: Article 86. Plea: Guilty. Finding: Guilty. Specification 1: On or about 8 April 2004, without authority, absent himself from his unit and did remain so absent until on or about 12 April 2004. Specification 2: On or about 17 April 2004, without authority, absent himself from his unit and did remain so absent until on or about 20 April 2004. Charge II. Article 112a. Plea: Guilty. Finding: Guilty. Specification 1: Wrongfully used cocaine, between on or about 16 March 2004 and on or about 23 March 2004. (After arraignment, but prior to entry of pleas, the Military Judge granted the government's motion to amend the Specification by striking the words "a controlled substance"). Specification 2: Wrongfully used cocaine, between on or about 13 April 2004 and on or about 20 April 2004. (After arraignment, but prior to entry of pleas, the Military Judge granted the government's motion to amend the Specification by striking the words "a controlled substance" and by deleting "e" in "diverse occasions" and making it "divers occasions"). Charge III: Article 121. Plea: Guilty. Finding: Guilty. Specification: Stole a DVD player and two sets of tools, of a total value of under $500.00, between on or about 20 March 2004, and on or about 22 March 2004, the property of Specialist W. (2) Adjudged Sentence: Confined for nine months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 13 January 2005 / Only so much of the sentence as provides for a bad conduct discharge and confinement for six months is approved and, except for the part of the sentence extending to a bad conduct discharge, would be executed. The accused will be credited with 76 days of confinement against the sentence to confinement. A deferment of the automatic forfeiture of pay pursuant to Article 57 (a) (2), UCMJ was approved on 16 July 2004, until the date of this action. (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: 12 May 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 May 2003 / 3 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 116 c. Highest Grade Achieved / MOS / Total Service: E-3 / 21B1P, Combat Engineer / 2 years, 10 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, 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 21 April 2004; and, From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective 19 September 2004. i. Lost Time / Mode of Return: 157 days AWOL, 8 April 2004 - 11 April 2004 / NIF AWOL, 17 April 2004 - 19 April 2004 / NIF CMA, 21 April 2004 - 29 June 2004 / Released from Pretrial Confinement CMA, 30 June 2004 - 18 September 2004 / Returned to Duty j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 214; DD Form 293; four third party statements; self-authored statement. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he is sober from all substance abuse, attained gainful employment and God has blessed him with a family of his own with a healthy child. 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. 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 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 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 applicant contends he was suffering from stress, anxiety and depression, which affected his behavior and led to his discharge. However, the service record contains no evidence of stress, anxiety or depression diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 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 third party statements provided with the application speak highly of the applicant's performance. They all recognize his good conduct after leaving the Army; 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. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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 4 December 2019, and by a 3-2 vote, the Board determined that clemency is warranted. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to under other than honorable. 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 AR20180009054 1