1. Applicant's Name: a. Application Date: 7 July 2018 b. Date Received: 12 July 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of a bad conduct discharge to general (under honorable conditions). The applicant seeks relief contending, in effect, was a good Soldier, who was well-mannered during service. The applicant states, another Soldier stole the applicant's car and belongings, which were things the applicant had worked hard to obtain. Nothing happened to the other Soldier for those actions, so the applicant took something that belonged to the Soldier, which caused the applicant to be in trouble. The applicant was confined for three months, returned to duty and then discharged on the ETS with a Bad Conduct discharge. The applicant believes it was wrong to discharge the applicant with a Bad Conduct discharge, because the applicant returned to work and did everything right. In a records review conducted at Arlington, VA on 29 January 2020, 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, SEC IV / JJD / RE-4 / Bad Conduct b. Date of Discharge: 28 July 2004 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 71, dated 5 December 2001, on 19 April 2001, the applicant was found guilty of the following: Charge I. Article 121. Plea: Guilty. Finding: Guilty. Specification: Steal jewelry, of a value of $1320.00, the property of PFC PJJ, on or about 24 November 2000. Charge II. Article 130. Plea: Guilty. Finding: Guilty. Specification: Unlawfully enter a room, property of PFC PJJ, with intent to commit a criminal offense, on or about 24 November 2000. (2) Adjudged Sentence: Reduction to E-1; to forfeit $600 pay per month for 3 months; to be confined for 3 months, and to be discharged from the service with a Bad Conduct discharge. (3) Date/Sentence Approved: 5 December 2001 / only so much of the sentence, a reduction E-1, to forfeit $600 pay per month for 3 months; to be confined for 3 months, and a bad conduct discharge was approved and, except for that part of the sentence extending to a bad conduct discharge, would be suspended for six months unless the suspension is sooner vacated. The sentence to confinement had been served. On 31 May 2002, the suspension of the applicant's discharge was vacated. (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. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 8 April 2004 / Bad Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 30 June 1999 / 3 years b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 86 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Specialist / 4 years, 10 months, 18 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: AAM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. Report of result of Trial, reflects the applicant was tried in a Special Court-Martial on 19 April 2001. The applicant was charged with two specifications as reflected in the Special Court- Martial Order described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 19 April 2001; and, From "Confined by Military Authorities (CMA)" to "Present for Duty (PDY)," effective 29 June 2001. i. Lost Time / Mode of Return: 70 days (CMA, 19 April 2001 - 28 June 2001) / Returned to Duty j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; DD Form 293. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to a general (under honorable conditions) discharge. The applicant's 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 contends he believes it was wrong to discharge him after he served his confinement. However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The applicant contends that he had good service. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. 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 29 January 2020, 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 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 AR20180010840 1