1. Applicant's Name: a. Application Date: 1 January 2016 b. Date Received: 8 February 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable. The applicant seeks relief contending, in effect, that hardship was brought upon him and his family when charges were filed against him on 18 April 2014. He had served jail time and then was later informed by Army human resource personnel that the charges brought against him were erroneous. Because of the situation, he was also stopped by homeland security when he arrived in Guam because an arrest warrant was issued and was still active. Prior to this event he was informed by Army personnel that the warrant was lifted. Because his time had been served already, the warrant should have been dismissed and or deactivated. He was also advised by Army human resource personnel that the handling of his case and discharge were not completed properly. In a records review conducted at Arlington, VA on 21 June 2017, 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: 17 July 2014 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 18, dated 11 March 2012, the violations of the UCMJ, pleas, and findings are as follows: Charge I, violation of Article 86, four specifications: AWOL from 16 November to 14 December 2010; guilty consistent with plea; AWOL from 19 to 24 January 2011; guilty consistent with plea; AWOL from 28 January to 1 March 2011; guilty consistent with plea; and, AWOL from 21 to 30 March 2011; guilty consistent with plea. Charge II, violation of Article 112a, three specifications: wrongfully use D-Methamphetamine, between 21 February and 1 March 2011; guilty consistent with plea; wrongfully use D-Methamphetamine, between 21 February and 1 March 2011; guilty consistent with plea; and, wrongfully use marijuana, between 22 February and 1 March 2011; guilty consistent with plea. Charge III, violation of Article 134, guilty consistent with plea. Having been restricted to the limits of Fort Hood, Texas, by Captain B.A.D, a person authorized to do so, did, at Fort Hood, Texas, on divers occasions between on or about 19 January 2011 and 21 March 2011, break said restriction. Plea: Guilty, except the words and figures "19 January 2011 and 21 March 2011", substituting the words and figures "2 March 2011 and 20 March 2011"; to the excepted words and figures: Not Guilty; to the substituted words and figures: Guilty. Finding: Guilty, except the words and figures, "19 January 2011 and 21 March 2011," substituting the words and figures, "2 March 2011 and 20 March 2011"; of the excepted words and figures: Not Guilty; of the substituted words and figures: Guilty. (2) Adjudged Sentence: 29 June 2011 / forfeiture of $500 pay per month for 4 months; reduction to the grade of E-1; confinement for 90 days; and, a Bad Conduct discharge. (3) Date/Sentence Approved: 11 March 2012 / The sentence was approved and except for that portion of the sentence pertaining to a Bad-Conduct Discharge, was executed. That portion of the sentence extending to confinement had already been served. The Accused was credited with 87 days of confinement against the sentence to confinement. (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. The applicant was credited with 87 days of confinement against the confinement sentence. (5) Date Sentence of BCD Ordered Executed: 15 July 2014 4. SERVICE DETAILS: a. Date / Period of Enlistment: 5 October 2009 / NIF b. Age at Enlistment / Education / GT Score: 28 / GED / 98 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91E10, Allied Trade Specialist / 4 years, 7 months, 2 days d. Prior Service / Characterizations: RA, 31 August 2006 - 4 October 2009 / HD e. Overseas Service / Combat Service: Korea, SWA / Afghanistan (28 December 2008 - 19 November 2009) f. Awards and Decorations: ACM-CS, ARCOM, AGCM, NDSM, GWOTSM, ASR, OSR- 2, NATOMDL g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial as described in previous paragraph 3c(1). Five Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 25 August 2011; From "AWOL" to "Dropped From Rolls (DFR)," effective 26 September 2011; From "Deserter" to "Confined By Civilian Authority (CCA)," effective 18 April 2014; From "CCA" to "PDY," effective 3 May 2014; and, From "Confined By Military Authorities (CMA)," on 3 May 2014. Report of Return of Absentee, dated 18 April 2014, reflects the applicant was reported as a deserter on 26 September 2011 and was apprehended on 18 April 2014, by civil authorities in Guam. Charge Sheet, dated 4 May 2014, reflects the applicant was charged with violation of the UCMJ, Article 85, for without authority absent himself from his unit in desertion from 25 August 2011 until 18 April 2014. On 1 July 2014, the charges preferred against the applicant were dismissed without prejudice. The applicant was ordered onto involuntary excess leave. i. Lost Time / Mode of Return: 1194 days (AWOL, 16 November - 13 December 2010; 19 - 23 January 2010; 28 January - 28 February 2011; 21 - 29 March 2011; Pre-Trial Confinement, 30 March - 23 June 2011; AWOL, 25 August - 25 September 2011; and, Dropped From Rolls, 26 September 2011 - 30 June 2014) Note: Based on the Personal Action forms, the applicant was "CCA" on 18 April 2014; and, was "PDY," on 3 May 2014, then changed to "CMA," on the same date. / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 of the application. 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 imposed. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to honorable. 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 contends that he was informed by Army human resource personnel that the handling of his case and discharge were not completed properly, which resulted in hardship for him and his family. However, a thorough review of the applicant's service record reflects that 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 his overall service record. Further, the sentence adjudged by the SCMCA on 29 June 2011, could not be affirmed and the Bad Conduct discharge could not be ordered executed by the United States Army Court of Criminal Appeals, due to the applicant's AWOL / Dropped from Rolls status. The service record reflects that after his court-martial, the applicant was placed in AWOL status, effective 25 August 2011, which was before the sentence was affirmed and the discharge ordered executed. The service record does not contain and the applicant has not provided any evidence that reflects he was Present for duty, which would have allowed the discharge to be ordered executed. Insomuch as the applicant was in a Dropped from Rolls status, there was an active warrant for his apprehension. On 18 April 2014, the applicant was apprehended, which resulted in new charges being preferred against him for his absence. However, the charges were dismissed; the applicant was ordered into involuntary excess leave status; and, on 15 July 2014, the discharge was ordered executed with a Bad Conduct discharge. Therefore, there is no basis for the Board to moderate the severity of the punishment imposed. 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 21 June 2017, 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 new Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. SPD/RE Code Change to: No Change f. Restoration to Grade: 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 AR20160003322 5