1. Applicant's Name: a. Application Date: 18 February 2016 b. Date Received: 19 February 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions) or uncharacterized. The applicant seeking relief, did not provide any issues of equity or propriety for the Board's consideration. In a records review conducted at Arlington, VA on 3 May 2017, and by a 5-0 vote, the Board, finding no cause for clemency and upon finding the separation was both proper and equitable, denied the request. (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: 8 July 2011 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 19, dated 22 July 2010, the applicant was found guilty of the following charge: Charge: Violation of Article 86, UCMJ, for being AWOL on 26 October 2009, until he was apprehended on 30 March 2010. (2) Adjudged Sentence and Date: Forfeiture of $964 pay per month for seven months, confinement for seven months, and to be discharged from the service with a bad- conduct discharge, adjudged on 20 April 2010. (3) Date Sentence Approved: 22 July 2010 (The sentence was approved and, except for that part of the sentence extending to a bad conduct discharge, would be executed.) (4) Appellate Reviews: NIF (5) Date Sentence of BCD Ordered Executed: 4 April 2011 (Special Court-Martial Order Number 41) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 August 2008 / 2 years, 22 weeks b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 91 c. Highest Grade Achieved / MOS / Total Service: E-2 / 25L10, Cable Systems Installer/Maintainer / 2 years, 10 months, 25 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; GWOTSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A previous court-martial conviction: Special Court-Martial Order Number 3, dated 25 March 2010, promulgated the findings of guilty by a special court-martial on 24 August 2009, of three charges: four specifications of Charge I, violating Article 86, UCMJ; Charge II, violation Article 112a, UCMJ; and Charge III, violation of Article 128, UCMJ. The adjudged sentence consisted of a reduction to E-1 and seven months of confinement. On 25 March 2010, only so much of the sentence extending to the reduction to E-1 and five months of confinement was approved, while the applicant was credited with 68 days of confinement against the sentence to confinement. Special Court-Martial Order No. 19, dated 22 July 2010, is described at paragraphs 3c(1) to (3). Special Court-Martial Order No. 41, dated 4 April, promulgates the affirmation of the sentence, and orders the execution of the Bad Conduct Discharge. i. Lost Time / Mode of Return: 156 days (AWOL, 26 October 2009 until 30 March 2010) / apprehended by civil authorities 274 days (Excess leave, 8 October 2010 to 8 July 2011) (Note: DD Form 214, block 29, incorrectly reflects "none") j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214 and SPCM Order 19. 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. 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. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (Other). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions) or uncharacterized. The applicant's available record of service, and his application were carefully reviewed. The record confirms there was full consideration of all faithful and honorable service, as well as, the misconduct incident. 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 Army Discharge Review Board (ADRB) 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 ADRB to be established facts, issues relating to the applicant's innocence of the charge 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. There is no evidence in the record, nor has the applicant produced any evidence based on clemency, to support a change to the characterization of service granted. Regarding the applicant's request for an uncharacterized discharge, an uncharacterized description of service applies only for Soldier, who are in an entry-level-status. For Regular Army Soldiers, entry-level status is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. As such, after 180 days of continuous active duty, the applicant was no longer in an entry-level-status; therefore, an uncharacterized discharge is inapplicable in his case. 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 3 May 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 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: 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 AR20160006313 1