IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 July 2013

      CASE NUMBER:  	AR20120020959
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and notwithstanding the Discussion and Recommendation which follows, the Board determined that clemency is warranted based on the applicant’s length and quality of his service, his combat service, and his post-service accomplishments.  Accordingly, the Board voted to grant partial relief by upgrading the applicant’s characterization of service to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute. 


      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT'S REQUEST AND STATEMENT:

1.  The applicant requests his bad conduct discharge be upgraded to general, under honorable conditions or to fully honorable.  

2.  The applicant states, in effect, he believes his discharge was too harsh because he was the only one convicted while others involved were acquitted.  He served honorably for 7 years and achieved the rank of Sergeant.  The action that led to his discharge was an isolated incident which has changed his life forever.  After leaving the Army he used his GI Bill to attend college and obtained a Bachelor’s and a Master’s degree.  He now volunteers in his free time helping seniors in his hometown.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			8 November 2012
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				26 August 2005
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 								JJD, RE-4
e. Unit of assignment:				HQ & A Co, 407th Forward Support Bn, Fort 							Benning, GA	
f. Current Enlistment Date/Term:		12 July 1999, 4 years, 7 months 
g. Current Enlistment Service:		6 years, 1 month, 4 days
h. Total Service:				7 years, 10 months, 4 days
i. Time Lost:					102 days  
j. Previous Discharges:			RA (970711-990711), HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		55B10, Ammunition Specialist
m. GT Score:					88
n. Education:					NIF
o. Overseas Service:				Italy
p. Combat Service:				Iraq (February 2003 – February 2004)
q. Decorations/Awards:			ARCOM-2, AAM-2, AGCM, NDSM, GWOTSM, 							ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:  

The record shows the applicant enlisted in the Regular Army on 11 July 1997.  His record indicates he was not a high school graduate.  On 12 July 1999, the applicant reenlisted for a period of 4 years and extended this enlistment for a period of 7 months.  When his court- martial proceeding was initiated he was serving at Fort Bragg, NC.  He was retained in the Service for the convenience of the government for a period of 675 days.  The applicant’s DD Form 214 does not show he received the awards of ARCOM-2, AAM-2, and an AGCM.  These awards are properly documented in his service record.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 13 May 2004, the applicant was found guilty by a special court-martial of selling a government computer valued at over $500.00 without proper authority.
      
2.  He was sentenced to a Bad Conduct Discharge, confinement for 4 months, reduction to the grade of E-1 and a forfeiture of pay in the amount of $795.00 per month for 9 months.

3.  On 3 August 2004, the applicant was released from confinement and placed on excess leave for 369 days (040823-050826).

4.  On 1 November 2004, the sentence was approved except for the part extending to the bad conduct discharge.  

5.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 23 June 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and ordered the sentence to be executed.  

6.  The applicant was separated from the Army on 26 August 2005, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4.

7.  The applicant’s service record shows he had 102 days of lost time (040513-040822), as a result of his military confinement.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order adjudged on 13 May 2004, the applicant was found guilty by a special court-martial of selling a government computer valued at over $500.00 without proper authority.  His punishment consisted of a Bad Conduct Discharge, confinement for 4 months, reduction to the grade of E-1 and a forfeiture of pay in the amount of $795.00 per month for 9 months.

2.  Two NCOERs for the periods of January 2003 through December 2003 and May 2002 through December 2002.  He was rated as fully capable and received a 2/2 rating from the senior rater for both reports.

EVIDENCE SUBMITTED BY THE APPLICANT: 

DD Form 214, 3 character reference letters, Associate’s Degree, Bachelor of Arts Degree, Masters Degree, 2 NCOERs, 3 ARCOM certificates, 2 AAM certificates, a Certificate of Achievement, 4 Certificates of Training, Italian Paratrooper certificate, and a promotion order.

POST-SERVICE ACTIVITY: 

The applicant states he has received a Bachelor’s and a Master’s degree and now volunteers helping seniors in his community.

REGULATORY AUTHORITY:

1.  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.  

2.  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.  

3.  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 ADRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to warrant clemency.  

2.  There was a full consideration of all faithful and honorable service as well as the incidents of misconduct.  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.  

3.  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.  

4.  The applicant contends that he believes his discharge was too harsh because other Soldiers with similar offenses were acquitted.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  The applicant was a non-commissioned officer who violated the trust and confidence placed on him by selling a government computer without any authorization.

5.  The applicant contends that he served honorably for 7 years and the incident that caused his discharge was isolated in nature.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of an non-commissioned officer.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  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.  

6.  The applicant’s service accomplishments and the quality of his service prior to the incident that caused his court-martial were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge due to the nature of his serious offense.

7.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and his court-martial conviction, it appears these accomplishments did not overcome the reason for discharge and characterization of service granted.  

8.  In view of the foregoing, the characterization of service being both proper and equitable, recommend the Board deny clemency.


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:   Personal Appearance    Date: 15 July 2013        Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: 			None

Witnesses/Observers: 	None

Board Vote:
Character Change:  4	No Change:  1  
Reason Change:	NA	No Change:  NA
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable Conditions
Change Reason to:			NA
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		No
Other:					None




















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR20120020959

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1