1. Applicant's Name: a. Application Date: 5 September 2018 b. Date Received: 28 September 2018 c. Counsel: 2. Request, Issues, Board Type, and Decision: The applicant requests an upgrade of the characterization of service from bad conduct to honorable and a change to the reentry eligibility (RE) code. The applicant through counsel seeks relief contending, in effect, did not violate Articles 89 and 91, because the commissioned and noncommissioned officers divested themselves of their rank and office by instigating the conflict. The applicant did not violate Article 91, because the applicant could not appreciate the criminality of the actions at the time of the offense. The applicant contends the government failed to prove beyond a reasonable doubt that the drunk and disorderly conduct occurred. The applicant's seven years of exemplary performance and service should not be defined by a singular event brought on by exceptional circumstances. The discharge characterization completely limits the applicant from accomplishing career and educational goals. A prior records review was conducted at Arlington, VA on 22 June 2018. 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. 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 personal appearance hearing conducted at Arlington, VA on 15 July 2019, and by a 3-2 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, and post- service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under 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: 20 February 2015 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: behave herself with disrespect toward First Lieutenant M.A.R., her superior commissioned officer then known by the applicant to be her superior commissioned officer, by using abusive language toward First Lieutenant M.A.R, to wit: "fuck you all" and "bitch.'' or words to that effect (30 March 2012); behave herself with disrespect toward First Lieutenant M.A.R, her superior commissioned officer, by yelling and pointing her finger at First Lieutenant M.A.R. (30 March 2012); having received a lawful command from First Lieutenant M.A.R, her superior commissioned officer, to stand at parade rest, did willfully disobey the same (30 March 2012); having received a lawful order from First Sergeant R.C.R., a superior noncommissioned officer, to "at ease," an order which it was her duty to obey, did willfully disobey the same (30 March 2012); disrespectful in deportment toward First Sergeant R.C.R., a superior noncommissioned officer, who was then in the execution of his office, by screaming and yelling toward First Sergeant R.C.R. (30 March 2012); strike Staff Sergeant T.D.D., a noncommissioned officer, who was then in the execution of his office, by physically knocking down his right arm with her hand (30 March 2012); having received a lawful order from Sergeant D.J.T., a noncommissioned officer, to stand at parade rest, an order which it was her duty to obey, did willfully disobey the same (30 March 2012); disrespectful in language toward Sergeant D.J.T., a noncommissioned officer, who was then in the execution of his office, by saying to him "f you." or words to that effect (30 March 2012); she was drunk and disorderly, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces (30 March 2012). On 6 September 2012, she was sentenced to a bad conduct discharge, confinement for 90 days and reduction to PVT / E-1. On 24 January 2013, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 27 June 2014, The US Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 9 January 2015, 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: 20 February 2015 / Bad-Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 4 November 2008 / 3 years b. Age at Enlistment / Education / GT Score: 41 years / Bachelor's Degree / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 68X10, Mental Health Specialist / 10 years, 9 months d. Prior Service / Characterizations: RA, 14 January 1986 to 29 August 1989 / HD (Break in Service) RA, 20 September 2000 to 9 November 2000 / UNC (Break in Service) ARNG, 26 September 2007 to 25 September 2008 / HD (Break in Service) e. Overseas Service / Combat Service: Hawaii / Korea / SWA / Iraq, 7 April 2011 to 25 May 2011 f. Awards and Decorations: AAM-3, AGCM, NDSM, ICM-CS, GWOTSM, OSR / applicant's service record reflects she served in Korea, however, the award of the KDSM is not annotated on the DD Form 214. Some awards are from prior service. g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The applicant received several monthly counseling regarding her performance and other areas of interest. i. Lost Time / Mode of Return: Military confinement for 63 days, 6 September 2012 to 8 November 2012). She also had 834 days of excess, 9 November 2012 to 20 February 2015. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); attorney's brief (16 pages); Exhibits 1 -33 (110 pages), as listed in the attorney's brief; Additional documents 1, applicant's statement; five support statements; applicant's request for re-appeal of petition and declaration (five pages); letters, U.S. Senators, with a related letter, Chief, Congressional Liaison and Inquiries and a prior records review AR20170007671; Additional documents 2, picture of Honorable C.P., applicant's speech to The Army Review Board, and other various documents (124 pages); Additional documents 3, speech to The Army Review Board (four pages); and Additional documents 4, Stars and Stripes news article, Blacks and Hispanics face military trials at disproportionate rates, GAO report to Congress (four pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant states through counsel she worked as a corrections officer and a bank teller. For the past 20 years, she has exhibited a dedication to serving others, by volunteering significant amounts of her time working to help victims of domestic violence. She produced films and documentaries about the ramifications of domestic violence and how it affects female Soldiers. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section III 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 The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from bad conduct to honorable and a change to the RE code. 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 through counsel seeks relief contending, she did not violate Articles 89 and 91, because the commissioned and noncommissioned officers divested themselves of their rank and office by instigating the conflict; and she did not violate Article 91, because she could not appreciate the criminality of her actions at the time of the offense; and the government failed to prove beyond a reasonable doubt that the drunk and disorderly conduct occurred. The record of evidence shows that a Special Court-Martial found the applicant guilty of Articles 89 and 91; she was sentenced to a bad conduct discharge, confinement for 90 days and reduction to PVT / E-1. The applicant further contends, her seven years of exemplary performance and service should not be defined by a singular event brought on by exceptional circumstances. However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. The applicant also contends, her discharge characterization completely limits her from accomplishing career and educational goals. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. The applicant requests a change to the RE code. Soldiers being processed for separation are assigned reentry codes based on their reason for discharge. Based on Army Regulation 635-5- 1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 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. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Applicant's Speech - 3 Pages Calendars - 2 Pages Doctor's Correspondence - 4 Pages Character Statements - 7 Pages b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): David P. Sheldon (Counsel) Tameka Tolbert (Witness) 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 15 July 2019, and by a 3-2 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, to include combat service, a prior period of honorable service, and post-service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to general under honorable. A change in the reason for discharge is not authorized under Federal statute. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions 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 AR20180014916 1