1. Applicant's Name: a. Application Date: 19 September 2018 b. Date Received: 28 September 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board will consider the applicant for a possible upgrade 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 applicant seeks relief contending, in effect, the applicant moved forward and improved oneself and advanced in a new career. 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 due to the period of service, the applicant's active duty records are unavailable for review. The applicant is 70% service- connected for Dysthymic Disorder from the VA. In summary, the applicant's BH diagnosis is not mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 18 March 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 August 2006 c. Separation Facts: NA (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: The applicant was found guilty by a Special Court-Martial of the following offenses: he knowingly and unlawfully mailed, in interstate commerce by computer, child pornography between (1 August 1999 and 3 May 2000); knowingly and unlawfully received, in interstate commerce by computer, child pornography between (1 August 1999 and 3 May 2000); knowingly and unlawfully reproduced for distribution, in interstate commerce by computer, child pornography between (1 August 1999 and 3 May 2000); and knowingly and unlawfully possessed computer disks containing child pornography between (1 August 1999 and 3 May 2000). On 22 November 2000, he was sentenced to be discharged from the service with a bad conduct discharge. On 11 May 2001, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 27 April 2004, The US Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 12 May 2006, the sentence was finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 12 May 2006 / Bad-Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 7 April 1999 / 5 years / extension of service was at the request and for the convenience of the Government / retained in service 877 days for the convenience of the Government per AR 635-200. b. Age at Enlistment / Education / GT Score: 38 years / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-5 / 15V10, Observation / Scout Helicopter Repairer / 22 years, 3 months 9 days d. Prior Service / Characterizations: USAR, 3 May 1984 to 21 May 1984 / NA RA, 22 May 1984 to 23 November 1986 / HD RA, 24 November 1986 to 27 March 1990 / HD RA, 28 March 1990 to 1 September 1993 / HD RA, 2 September 1993 to 16 October 1996 / HD RA, 17 October 1996 to 6 April 1999 / HD e. Overseas Service / Combat Service: Germany / Korea x2 f. Awards and Decorations: ARCOM-2, AAM-4, AGCM-5, NDSM, NOPDR-2, ASR, OSR-3 g. Performance Ratings: December 1998 to November 1999, Among The Best December 1999 to November 2000, Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); self-authored statement; U.S. Representative, Privacy Release Form for Military Casework; AMHRR documents (42 pages); and three support / character statements. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states in his self-authored statement I drove team tractor trailer delivering cabinets from Alabama to Washington State for Wellborn Cabinet's in Ashland, Alabama. He received several safety and accident free mile awards. In May of 2004, he went to work for Honda Manufacturing of Alabama; and started as a process associate and have moved up to become a New Model Trainer. 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 a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and 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. 8. DISCUSSION OF FACT(S): The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade 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 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 seeks relief contending, he moved forward and improved himself and advanced in his new career. The applicant is to be commended for his effort. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The third party statements provided with the application speak highly of the applicant. However, the persons providing the character reference statements were in and some 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 judicial due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 18 March 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 AR20180012574 1