1. APPLICANT’S NAME: a. Application Date: 28 March 2015 b. Date Received: 18 May 2015 c. Counsel: Yes 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable and a change to the narrative reason for separation. The applicant states, in effect, he received a bad conduct discharge (BCD), which was under circumstantial proof. He had documentation and witnesses which could prove his innocence of charges against him. He was on permanent change of station (PCS) orders to El Paso, TX and the promotion packet and some other documents were in storage. He requested through DA Form 4187 for his command to cancel his PCS orders to acquire all documents required, but it was denied with no explanation. His promotion packet was reviewed and approved by his company and battalion commanders and forwarded to the PSB promotion section. He was legally and diligently promoted from SGT/E5 to SSG/E6. During the investigation his promotion was revoked for not following AR 600-8-19, Chapter 7. From the beginning until the end of the processes, he did not receive fair treatment or a fair trial. He should not have been reduced from SSG/E6 and should not have received a BCD. In a personal appearance hearing was conducted at Arlington, VA on 7 March 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 / JJD / RE-4 / Bad-Conduct Discharge b. Date of Discharge: 20 July 2009 c. Separation Facts: (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; stealing monies, military property, of more than $500, the property of the US Government between (13 October 2005 and 31 March 2006); wrongfully and without authority wearing upon his uniform the insignia or grade of a staff sergeant between (13 October 2005 and 31 March 2006). On 29 November 2006, he was sentenced to a bad conduct discharge from the service. Of note, the findings of guilty charge II was set aside, and charge II was dismissed. On 12 June 2007, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 24 November 2008, the US Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 15 April 2009, the US Army Court of Appeals for the Armed Forces, denied the petition for grant of review of the decision by the US Army Court of Criminal Appeals. On 7 May 2009, 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: 7 May 2009 / Bad Conduct Discharge 4. SERVICE DETAILS: a. Date/Period of Enlistment: 1 December 2005 / 3 years b. Age at Enlistment/Education/GT Score: 37 years / Associate’s Degree / 120 c. Highest Grade Achieved/MOS/Total Service: SGT / E-5 / 42A10, Human Resources Specialist / 9 years, 10 months and 8 days d. Prior Service/Characterizations: RA (13 September 1999-25 April 2002) / HD RA (26 April 2002-31 November 2005) / HD e. Overseas Service/Combat Service: SWA / Iraq (11 March 2003-3 November 2003) f. Awards and Decorations: ARCOM-3, AAM-3, AGCM-2, NDSM, ICM-W/CS, NOPDR, ASR g. Performance Ratings: 1 September 2005-31 August 2006, Marginal h. Disciplinary Action(s)/Evidentiary Record: Special Court-Martial Order adjudged on (29 November 2006), which indicates the applicant was found guilty of dereliction of duty x2, stealing monies and wearing unauthorized rank. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: Online application (seven pages); two DA Forms 4187; PCS Orders 336-04 (two pages); revocation of promotion orders memorandum; routing and transmittal slip; certificate of promotion; promotion orders; revoking of promotion orders 032-17; recommended promotion list (three pages); promotion board proceedings with related documents (five pages); two Enlisted Records Brief (ERB); military training documents (three pages); awards and decorations (seven pages); military education (fifteen pages); and civilian education (three pages). 6. POST SERVICE ACCOMPLISHMENTS: None provided by the applicant. 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 ISSUE(S): The applicant requests an upgrade of his bad conduct discharge to 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. A change in the reason for discharge is not authorized under Federal statute. The applicant seeks relief contending, he received a bad conduct discharge (BCD), which was under circumstantial proof; he had documentation and witnesses which could prove his innocence of charges against him; he was on permanent change of station (PCS) orders to El Paso, TX and the promotion packet and some other documents were in storage. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention he was unjustly discharged. The applicant further contends, his promotion packet was reviewed and approved by his company and battalion commanders and forwarded to the PSB promotion section; he was legally and diligently promoted from SGT/E5 to SSG/E6; during the investigation his promotion was revoked for not following AR 600-8-19, Chapter 7. 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 applicant submitted promotion orders 290-01, dated 17 October 2005 with an effective date of 13 October 2005. Promotion orders were obtained from his official military personnel file (OMPF) via IPERMS with same date. However, the effective date of the orders obtained from his personnel file is 1 October 2005. The signatures are very different the phone number for inquiries concerning these orders are different also. The applicant also contends, from beginning until the end of the process, he did not receive fair treatment or a fair trial. He should not have been reduced from SSG/E6 and should not have received a BCD. The applicant was found guilty by a Special Court-Martial of stealing monies, military property of more than $500, the property of the US Government, wrongfully and without authority wearing upon his uniform the insignia or grade of a staff sergeant. The applicant bears the burden of presenting substantial and credible evidence to support this contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention he did not receive fair treatment, denied due process and should not have received a BCD. 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. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional document(s): a. Three NCOERs (6 pages) 2. The applicant presented no additional contentions. 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. 9. BOARD ACTION DIRECTED: a. Issue a New DD-214: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NIF - Not in File SPCM - Special Court Martial BCD - Bad Conduct Discharge HS - High School OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 HD - Honorable Discharge 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 IADT – Initial Active Duty Training RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable SCM - Summary Court Martial ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150008702 1