1. Applicant's Name: a. Application Date: 13 June 2016 b. Date Received: 20 June 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from bad conduct to general (under honorable conditions). The applicant seeks relief contending, in effect, he feel that he served his time overseas which makes him a veteran. He has a Global War on Terrorism and Campaign Badge. He should be receiving minimum veteran benefits. In a records review conducted at Arlington, VA on 6 September 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: 29 September 2008 c. Separation Facts: No (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; disrespectful in deportment toward SGT J.H., a noncommissioned officer, who was then in the execution of his office, by getting in his face and yelling at him (7 March 2007); disrespectful in language and deportment toward SSG L.A., a noncommissioned officer, who was then in the execution of his office, by calling him "dog", and getting in his face, and yelling at him (9 March 2007); assault SFC .G.D., a noncommissioned officer, who was then in the execution of his office, by sticking his finger in the said SFC .G.D's chest (14 March 2007); assault Trooper Sands, who was in the execution of civilian law enforcement duties, by CPT R. A. M., swinging an elbow at the said Trooper Sand's head (1 April 2007); offer violence against his superior commissioned officer, who was then in the execution of his office, by lunging at CPT R. A. M. (22 May 2007); assault SGT D.B., who then was then known by the accused to be a person then having and in the execution of military police law enforcement duties, by striking him with his hand (22 May 2007); and behave himself with disrespect toward CPT R. A. M., his superior commissioned officer, by saying to him "Shut the f up, dog," or words to that effect (22 May 2007). On 10 July 2007, he was sentenced to a reduction to PVT / E-1, forfeiture of $850 pay for nine months, confinement for nine months and a bad-conduct discharge. On 12 October 2007, the sentence was approved. The record of trial being forwarded to The US Army Court of Criminal Appeals for review and The US Army Court of Criminal Appeals affirming the approved findings of guilty and the sentence are not contained in the available record and government regularity is presumed in the judicial process. On 24 April 2008, 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: 24 April 2008 / Bad-Conduct Discharge 4. SERVICE DETAILS: a. Date / Period of Enlistment: 18 May 2005 / 4 years b. Age at Enlistment / Education / GT Score: 19 years / GED Certificate / 103 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92A10, Automated Logistical Specialist / 2 years, 10 months, 1 day d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Alaska / SWA / Iraq, specific dates NIF f. Awards and Decorations: ICM-CS, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: Confinement by military authorities for 190 days (10 July 2007 to 20 January 2008). Also he had 208 days of excess leave (6 March 2008 to 29 September 2008). j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); DD Form 214; IPERMS page; Special Court-Martial Order Number 5 (three pages); Special Court-Martial Order Number 73; and a letter, Director, Case Management Division. 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 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 FACT(S): The applicant requests an upgrade of the characterization of service from bad conduct to general (under honorable conditions). The applicant's available 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 seeks relief contending, he feels that he served his time overseas which makes him a veteran and he has a Global War on Terrorism and Campaign Badge. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the court martial proceeding were carefully considered. The applicant is to be commended for his service. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The applicant also contends, he should be receiving minimum veteran benefits. Eligibility for veteran's 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 conducted at Arlington, VA on 6 September 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 AR20160011489 1