1. Applicant’s Name: a. Application Date: 6 May 2015 b. Date Received: 11 May 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to a general, under honorable conditions discharge or honorable and a change to the narrative reason for separation. The applicant seeks relief contending, in effect, his case was not given a serious review or a fair judgement and that the amount of dedication he had to the service should be the determining factor, not the issues he had following a 12-month deployment. In a records review conducted at Arlington, VA on 19 August 2016, 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, Section IV / JJD / RE-4 / Bad Conduct b. Date of Discharge: 7 November 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 31, dated 16 December 2013, on 26 August 2013, the applicant was found guilty of the following: Charge I, in violation of Article 128, UCMJ, for assault (two specifications); and, Charge II, in violation of Article 92, for failing to obey order or regulation. (2) Adjudged Sentence: a reduction to E-1; to be confined for 90 days, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 16 December 2013 / only so much of the sentence, a reduction E-1, confinement for 90 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. The applicant was credited with 78 days of confinement towards 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. (5) Date Sentence of BCD Ordered Executed: 9 October 2014 4. SERVICE DETAILS: a. Date/Period of Enlistment: 8 November 2012 / 3 years b. Age at Enlistment/Education/GT Score: 25 / HS Graduate / 97 c. Highest Grade Achieved/MOS/Total Service: E-4 / 88M10, Motor Transport Operator / 8 years, 5 months, and 26 days d. Prior Service/Characterizations: AFNG, 9 December 2005 - 13 February 2006 / NA USAF, 14 February 2006 - 19 June 2006 / UNC (Break in Service) USAFR, 5 January 2007 - 9 June 2008 / NA RA, 10 June 2008 - 21 January 2010 / HD RA, 22 June 2010 - 7 November 2012 / HD e. Overseas Service/Combat Service: SWA / Iraq (17 July 2011 - 31 December 2011), Kuwait (14 August 2009 - 14 July 2010, 1 January 2012 - 30 June 2012) f. Awards and Decorations: ARCOM-2, MUC, AGCM, NDSM, GWTEM, GWTSM, ICM-CS, ASR, OSR-3 g. Performance Ratings: N/A h. Disciplinary Action(s)/Evidentiary Record: Court-Martial described at the preceding paragraph 3c. i. Lost Time: 89 days (Confinement, 9 June 2013 - 6 September 2013) j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 6 May 2015, and DD Form 214. 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD Code/RE Code Cross Reference Table identifies the appropriate reentry code to assign the Soldier based on the narrative reason for discharge. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to a general, under honorable conditions discharge or honorable and a change to the narrative reason for separation. 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 his case was not given a serious review or a fair judgement and that that the amount of dedication he had to the service should be the determining factor, not the issues he had following a 12-month deployment. However, 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. The applicant believes the narrative reason for the discharge should be changed because it was unfair. However, the applicant was separated under the provisions of Chapter 3, AR 635-200 with a under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Court-Martial (Other),” and the separation code is “JJD.” Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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 19 August 2016, 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 SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: No Change AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NA - Not applicable 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 OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police – PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150008391 3