1. Applicant's Name: a. Application Date: 14 March 2017 b. Date Received: 20 March 2017 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 general (under honorable conditions) or honorable. The applicant seeks relief contending, in effect, he only had one bad incident that got him in trouble in his five years of serving on active duty, which led to his current discharge. Although he deserved to receive punishment for his actions, he has also served in Iraq and put his life on the line for his country. There has been no other issues with the law, since his discharge as he tries to be the best role model for his children. In a records review conducted at Arlington, VA on 27 June 2018, the Board found no cause for clemency and by a 5-0 vote, the Board voted to deny relief. (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: 25 June 2012 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 3, dated 24 July 2009, the applicant was found guilty of the following charges: Charge I: Violation of Article 81, UCMJ, between 1 February 2008 and 16 June 2008, the applicant conspired with PFC J.P. to steal items valued in excess of $500, property of AAFES. Charge II: Violation of Article 92, UCMJ, between 1 November 2007, and December 2007 he violated a lawful general regulation by wrongfully purchasing duty free good in excess of the prescribed limit. Charge III: Violation of Article 121, UCMJ, between 1 February 2008, and 16 June 2008, he stole one 750 gigabyte external hard drive, four hard drives (500 gigabyte, two 250 gigabyte,, and 160 gigabyte), and 30 electronic video games, valued in excess of $500, property of AAFES. (2) Adjudged Sentence and Date: To be reduced to the grade of Private (E-1), to be confined for 10 months, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 13 March 2009. (3) Date Sentence Approved: On 24 July 2009, only so much of the sentence of reduction to E-1, confinement for six months, and a bad-conduct discharge was approved and except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. (4) Appellate Reviews: According to SPCM Order No. 28, dated 10 March 2011, the promulgated findings of SPCM Order No. 3, dated 24 July 2009, as corrected by US Army Criminal Appeals Notice of Court-Martial Order Correction, dated 6 October 2010 (NIF), had been finally affirmed on 10 May 2011, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 1 September 2011 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 August 2007 / 6 years b. Age at Enlistment / Education / GT Score: 24 / HS Graduate / 120 c. Highest Grade Achieved / MOS / Total Service: E-4 / 91H10, Track Vehicle Repairer / 7 years, 8 months, 21 days (includes excess leave for 1,101 days from 21 June 2009 to 25 June 2012, creditable for all purposes except pay and allowances) d. Prior Service / Characterizations: RA (31 March 2004 to 1 August 2007) / HD e. Overseas Service / Combat Service: Korea / None (Although the applicant states, in effect, he served in Iraq; however, there is no record of that service in file.) f. Awards and Decorations: AGCM; NDSM; GWOTSM; ASR; OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Two DA Form 4187 (Personnel Actions) reflect that the applicant's duty status changed from Present for Duty to Confined by Military Authorities, effective 4 December 2009, and from Confined by Military Authority to Present for Duty, effective 21 June 2010. Special Court-Martial Orders No. 3, dated 24 July 2009, and No. 28, dated 10 March 2011, described at the preceding paragraphs 3c(1) and 3c(4), respectively. i. Lost Time / Mode of Return: 186 days (Pretrial Confinement from 17 December 2008 to 12 March 2009, and Confinement pursuant to court-martial sentence from 13 March 2009 to 20 June 2009) / Released upon completing court-martial sentence j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 14 March 2017. 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 general (under honorable conditions) or honorable. The applicant's available record of service and the issues 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. The applicant contends the incident that led to his discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant clemency by upgrading his characterization of service. 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 27 June 2018, the Board found no cause for clemency and by a 5-0 vote, the Board voted to deny relief. 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 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 AR20170004541 1