1. Applicant's Name: a. Application Date: 23 September 2016 b. Date Received: 29 September 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge from bad conduct discharge to honorable. The applicant states, in pertinent part and in effect, during the appellate review of his court-martial conviction and appeal, the government conceded and agreed the military judge erred by not resolving the possible mistake of fact defense raised by him during the providence inquiry. Accordingly, the court amended and affirmed only so much of the findings of guilty; wherein, he was AWOL on 18 September 2001, and remained absent until 25 October 2001. The government stated they would grant appropriate relief in the decretal paragraph reassessing the sentence on the basis of the error noted. The court reassessing the sentence on the basis of error, the entire record which included the applicant's prior summary court-martial convictions for a previous unauthorized absence and missing movement, and applying the principles of a previous case, affirmed only so much of the sentence as provides for a bad conduct discharge, and all rights, privileges, and property of which he had been deprived by virtue of that portion of his sentence set aside were ordered restored as mandated by Article 75(a), UCMJ. The applicant asserts that while he attempted to contact different agencies at different installations, he was passed off to other personnel and agencies because it was not in their arena. In a records review conducted at Arlington, VA on 6 December 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: 6 June 2007 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 53, dated 25 October 2003 (NIF), the applicant was found guilty of the following charge: The Charge: In violation of Article 86, UCMJ, for being AWOL on 18 September 2001, and remained absent until 15 April 2003. (The words, "terminated by apprehension" was deleted per "Notice of Court-Martial Order Correction," dated 27 May 2005, by the Army Court of Criminal Appeals (ACCA).) (2) Adjudged Sentence and Date: Reduction to the grade of Private/E-1; to be confined for nine months; forfeiture of $767 pay per month for nine months; and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 5 August 2003. (3) Date Sentence Approved: On 25 October 2003 (NIF), only so much of the sentence as provided for reduction to the grade of Private/E-1, confinement for nine months, forfeiture of $964 pay per month for 10 months, and discharge from the service with a Bad Conduct Discharge was approved and, that except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. Further, per the appellate review, pursuant to a pretrial agreement (NIF), a sentence of a bad conduct discharge, confinement for 180 days, and forfeiture of $767 per month for nine months was approved, and the applicant received 222 days of confinement credit against the adjudged sentence. (4) Appellate Reviews: According to SPCM Order No. 42, dated 16 February 2006, the promulgated findings of SPCM Order No. 53, dated 25 October 2003 (NIF), as corrected by the United States Army Court of Criminal Appeals (ACCA) Notice of Court-Martial Order Correction, dated 27 May 2005, the court amended and affirmed only so much of the following findings of guilty of "The Specification of the Charge": for being AWOL on 18 September 2001, and remained absent until 25 October 2001, and that only so much of the promulgated sentence as provides for a bad conduct discharge, adjudged on 5 August 2003, had been affirmed. (5) Date Sentence of BCD Ordered Executed: 16 February 2006 (Special Court- Martial Order Number 42) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 April 1999 / 3 years b. Age at Enlistment / Education / GT Score: 22 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-1 (NIF) / 77F10, Petroleum Supply Specialist / 7 years, 10 months, 20 days (includes 1,321 days of involuntary excess leave, creditable for all purposes except pay and allowances, from 25 October 2003 to 6 June 2007) d. Prior Service / Characterizations: DEP (19 March 1999 to 19 April 1999) / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: NDSM; ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order No. 53, dated 25 October 2003, described at paragraphs 3c(1) to (3) is NIF. Special Court-Martial Order No. 42, dated 16 February 2006, promulgates the amendment and affirmation of the findings and sentence, and orders the execution of the Bad Conduct Discharge. i. Lost Time / Mode of Return: 119 days (AWOL: 18 September 2001 to 25 October 2001, for 38 days) and Unknown mode from 5 August 2003 to 24 October 2003, for 81 days) / Released from civilian confinement on 25 October 2001 (amended by appellate court as final date of absence as charged, although apprehended by civil authorities on 15 April 2003) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (Application for Correction of Military Record), dated 23 September 2016; letter, dated 10 June 2005; fax cover, dated 20 October 2006; US Army Court of Criminal Appeals Memorandum Opinion, dated 27 May 2005; Brief on Behalf of Appellee with Certificate of Service and Filing, dated 28 February 2005; Brief on Behalf of Appellant on Specified Issues with Certificate of Service, dated 27 January 2005; and email correspondence, dated 12 September 2016. 6. POST SERVICE ACCOMPLISHMENTS: None provided 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 the characterization of his discharge from bad conduct discharge to 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 misconduct incidents. 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 sufficient evidence based on clemency, to support a change to the characterization of service granted. The applicant contends an appellate decision in his case reassessed his sentence, and his documentary evidence shows that it extended to his confinement and forfeiture. However, the applicant's request for relief based on the appellate court's decision does not fall within the purview of this Board. Therefore, it could be forwarded to the Army Board for Correction of Military Records (ABCMR) for their consideration and disposition. 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 December 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. 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 Authority to: No Change e. Change SPD / RE Code to: No Change f. 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 AR20160017848 2