1. Applicant's Name: a. Application Date: 10 August 2018 b. Date Received: 10 August 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of a bad conduct discharge. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge the Army Discharge Review Board will consider the applicant for a possible upgrade to honorable. The applicant seeks relief contending, in effect, that over the past 15 years, has displayed good character and now knows that the applicant has grown to understand and be responsible so that the applicant can advance in life. 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 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 25 July 2007 c. Separation Facts: (1) Pursuant to Special Court Martial Empowered to Adjudge a Bad Conduct Discharge: The applicant was found guilty of the following: Charge I, in violation of Article 91: Having received a lawful order from SSG J.W.W., a noncommissioned officer, then known by applicant to be a noncommissioned officer, to give him his ID card, an order which was his duty to obey, did on or about 30 April 2003, willfully disobeyed the same; Charge II, in violation of Article 107: With intent to deceived, signed an official record, to wit: DD Form 1172 (Application for Uniformed Services Identification Card DEERS Enrollment) which record was false in that Mr. S.M., was not his ward and then known by the applicant to be so false on 16 January 2003; and Charge III, in violation of Article 121: Stealing basic allowance for housing, of a value of $16,400, the property of the U.S. Government between on or about 1 August 2001 and 31 December 2002. (2) Adjudged Sentence: On 18 June 2003, the applicant was sentenced to be reduced to the grade of E-1, pay a fine of $9,000, be confined for 9 months, and to be separated from the service with a bad-conduct discharge. (3) Date/Sentence Approved: The sentence was approved, and except for the part of the sentence extending to a bad-conduct discharge was executed. (4) Appellate Review: The record of trial was forwarded to The Judge Advocated General of the Army for review by the Court of Military Review. The United States Army Court of Criminal Appeals affirmed the remaining finding of guilty. Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed. (5) Date Sentence of BCD Ordered Executed: 27 November 2006 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 November 1999 / 4 years (The applicant was retained in service 1206 days for the convenience of the government per AR 635-200). b. Age at Enlistment / Education / GT Score: 18 / GED / NIF c. Highest Grade Achieved / MOS / Total Service: E-2 / 42A10, Human Resources Specialist / 7 years, 3 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: None h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Orders as described in previous paragraph 3c(2) i. Lost Time / Mode of Return: Confinement Military Authorities 141 days (18 June 2003 to 5 November 2003) as a result of punishment from his Special Court-Martial. The DD Form 214 under review makes reference to the applicant having 1357 days (7 November 2003 to 25 July 2007) of excess leave. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149; several letters of recommendation; and request for the DAV. 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. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of 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 seeks relief contending, in effect, that over the past 15 years, he has displayed good character and now knows that he has grown to understand and be responsible so that he can advance in his life. The applicant's contentions were noted; 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 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 AR20180013035 1