1. Applicant’s Name: a. Application Date: 8 October 2015 b. Date Received: 13 October 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge to general, under honorable conditions or honorable. The applicant seeks relief contending, in effect, an upgrade would help his family of five with benefits, any other assistance, and improve current living situation. In a records review hearing conducted at Arlington, VA on 12 September 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: 27 March 2003 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 11, dated 2 October 2001, on 14 March 2001, the applicant was found guilty of the following charges: Charge I: four specifications of violations of Article 86, UCMJ, for failing to be at his appointed place of duty at the prescribed time on three separate occasions on 30 October 2000, 31 October 2000, and 2 November 2000, and being AWOL on 18 December 2000, until he was apprehended on 4 January 2001. Charge II: Dismissed Charge III: Violation of Article 90, UCMJ, for disobeying a lawful command of a superior commissioned officer on 30 October 2000. Charge IV: four specifications of violations of Article 91, UCMJ, for disobeying an NCO on two separate occasions on 30 October 2000 and 31 October 2000, and being disrespectful in deportment towards an NCO on 2 November 2000, and being disrespectful in language towards an NCO on 2 November 2000. Charge V: Violation of Article 92, UCMJ, for violating a lawful general order on 30 October 2000. Charge VI: Dismissed Charge VII: two specifications of violations of Article 112a, UCMJ, as follows: Specification 1: wrongfully using marijuana between 25 June 2000 and 25 July 2000. Specification 2: wrongfully using marijuana between 21 October 2000 and 21 November 2000. (2) Adjudged Sentence: Forfeiture of $695 pay per month for three months, confinement for three months, and to be discharge from the service with a Bad-Conduct Discharge. (3) Date/Sentence Approved: On 2 October 2001, the sentence was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed. (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 and on 12 August 2002, the United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence (5) Date Sentence Ordered Executed: 25 January 2003 4. SERVICE DETAILS: a. Date/Period of Enlistment: 2 September 1998 / 3 years b. Age at Enlistment/Education/GT Score: 20 / HS Graduate / NIF c. Highest Grade Achieved/MOS/Total Service: E-2 / 13B10, Cannon Crewmember / 4 years, 4 months, 11 days (Note that the applicant was placed on an involuntary excess leave, creditable for all purposes, except pay and allowance, for 738 days from 20 March 2001 through 27 March 2003.) d. Prior Service/Characterizations: None / NA e. Overseas Service/Combat Service: None f. Awards and Decorations: ASR g. Performance Ratings: None h. Disciplinary Action(s)/Evidentiary Record: Special Court-Martial Order Number 11, dated 2 October 2001, described at the preceding paragraph 3c(1) and 3c(2). United States Army Court of Criminal Appeals decision, dated 12 August 2002. Special Court-Martial Order Number 20, dated 25 January 2003, ordered the Bad Conduct Discharge to be executed. i. Lost Time: 76 days (Military confinement from 4 January 2001 through 19 March 2001) j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 8 October 2015. POST SERVICE ACCOMPLISHMENTS: None. 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 the characterization of his discharge to general, under honorable conditions or honorable. The applicant’s available record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms there was full consideration of all faithful and honorable service, as well as, the incidents of misconduct. 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. Because relevant and material facts stated in a court-martial specification are presumed by the Army Discharge Review Board (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. The ADRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial. The applicant has expressed his desire to have better job opportunities, the benefits of the GI Bill, and any other assistance his family can receive. However, the Board does not grant clemency for the purpose of gaining employment or enhancing employment opportunities. Further, eligibility for veterans' 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 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 hearing conducted at Arlington, VA on 12 September 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: 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: NA 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 VA - Veterans Affair ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150016835 1