1. Applicant's Name: a. Application Date: 17 September 2018 b. Date Received: 17 September 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of her bad conduct discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, that it was wrong and unlawful what was done to her. She contends that she did not plead guilty to any charges, she never smoked anything, never tested positive for drug use, never conspired with her husband to commit any offenses and didn't hang out with the guys. The applicant believes she was unfairly treated in her unit because she didn't want to have sex with the commander, first sergeant, and other noncommissioned officers; they tried to pin something on her to get her discharged. They knew she wasn't going to give in no matter how hard they tried. 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), the applicant's records were reviewed due to reports of MST events. Due to the period of service, active duty electronic medical records are void; medical records were kept in a hard copy file at that time. Moreover, the applicant's discharge hinders VA access to care preventing post-service documentation. However, per liberal consideration, the applicant's self-report of MST should be considered. Of note, MST would partially mitigate the basis for separation; use of marijuana. Distribution would not be mitigated. The applicant is not service connected. VA records are void of contact. In summary, the applicant has a BH diagnosis that mitigates part of the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 5 February 2021, 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: 19 September 2007 c. Separation Facts: (1) Pursuant to Special Court Martial Empowered to Adjudge a Bad Conduct Discharge: The applicant was found guilty of the following: Charge I, in violation of Article 81: Conspiracy to distribute marijuana on divers occasion between 1 August 2002 and 31 January 2003; and Charge II, in violation of Article 112: For wrongful use of marijuana on divers occasions on or between 1 August 2002 and 31 January 2003; and Wrongful distribution of marijuana on divers occasions on or between 1 August 2002 and 31 January 2003 (2) Adjudged Sentence: On 2 May 2003, the applicant was sentenced to be reduced to the grade of E-1, forfeit two-thirds pay per month for 1.5 months or 45 days; to be confined for 45 days, and to be discharged from the service with a bad conduct discharge. (3) Date/Sentence Approved: On 24 October 2003, only so much of the sentence as provides for reduction to private (E-1), confinement for 45 days 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 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 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: 7 September 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 10 April 2001 / 4 years b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-4 / 74C10, Telecom OPR-MNT / 6 years, 4 months, 5 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders as described in previous paragraph 3c(2). i. Lost Time / Mode of Return: The DD Form 214 under review makes reference to 1,536 days of excess leave (7 July 2003 to 19 September 2007). j. Diagnosed PTSD / TBI / Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 149; and self-authored statement. 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. 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 her bad conduct discharge to honorable or general (under honorable conditions). The applicant's record of service, the issues and documents submitted with her 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 that it was wrong and unlawful what was done to her. She contends that she did not plead guilty to any charges, she never smoked anything, never tested positive for drug use, never conspired with her husband to commit any offenses and didn't hang out with the guys. The applicant believes she was unfairly treated in her unit because she didn't want to have sex with the commander, first sergeant, and other noncommissioned officers; they tried to pin something on her to get her discharged. They knew she wasn't going to give in no matter how hard they tried. The applicant's contentions were noted; however, there is no evidence in the record, nor has the applicant produced any evidence to support the contention that she was unjustly or unlawfully discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 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 character of the applicant's discharge is commensurate with her overall service record. 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 5 February 2021, 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 / 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 AR20180012625 1