IN THE CASE OF:  	

      BOARD DATE:  	6 May 2013

      CASE NUMBER:  	AR20120021504
___________________________________________________________________________

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 considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      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 to upgrade his characterization of service from a Bad Conduct discharge to fully honorable.

2.  The applicant states, in effect, that he was discharged for refusing to go back on another deployment, until his promotion orders for Sergeant First Class were provided him.  His attorney informed him that he should have received his orders before he was reassigned from Recruiting Command, and instructed him to ask.  Upon inquiring, he was sent to Fort Irwin (NTC) for training, and when he returned the chain of command had been completely replaced, so he inquired again for his promotion orders and the response was the same, he was again placed on the next training deployment.  He had no issues with deployments or training but the company, battalion, brigade, and post all failed to provide him his promotion orders.  He is left with having to fight for correcting his records that were somehow missing.  (Note that the applicant made additional incomprehensible arguments regarding his awards and decorations.)

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 November 2012
	b.	Discharge Received:	Bad Conduct Discharge
	c.	Date of Discharge:	31 October 2003
	d.	Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3 
			Section IV, JJD, RE-4
	e.	Unit of assignment:	664th Ordnance Company, 553rd Corps Support 
			Battalion, 64th Command Support Group, 13th Corps 
			Support Command, III Corps and Fort Hood, Fort 
			Hood, TX
	f.	Current Enlistment Date/Term:	29 April 1997, 6 years
	g.	Current Enlistment Service:	6 years, 3 months, 19 days (includes excess leave 
			for 456 days (020802-031031)
	h.	Total Service:	17 years, 10 months, 6 days
	i.	Time Lost:	74 days
	j.	Previous Discharges:	RA (851011-900304), HD
			RA (900305-951121), HD
			RA (951122-970428), HD
	k.	Highest Grade Achieved:	E-6
	l.	Military Occupational Specialty:	55B10, Ammunition Specialist
	m.	GT Score:	112
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, Saudi Arabia (7-month TDY), Haiti
	p.	Combat Service:	SWA (900815-910415) per DA Form 2-1
	q.	Decorations/Awards:	ARCOM-OLC; AAM-4BOLC; NDSM-BS; AGCM; 
			NPDR-2 (Per DD Form 215).  The record shows an 				award of the SWASM-2BSS.
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE: 

The applicant reenlisted in the Regular Army on 29 April 1997 for a period of 6 years.  He was 19 years old at the time of entry and a high school graduate.  He served in Germany and Saudi Arabia.  He earned 2 ARCOMs, 5 AAMs, and an AGCM.  He completed 17 years, 10 months, and 6 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 20 May 2002, the applicant was found guilty by a special court-martial empowered to adjudge a bad conduct discharge for the following offenses:

a. through neglect, missed movement (011116)
b. through design, missed movement  (011117)

He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 5 months, reduction to E-1, and forfeiture of $1,600 pay per month for 5 months.

2.  On 25 July 2002, the sentence was approved, except for confinement for 5 months; it was reduced to confinement for 3 months.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and subsequently, The United States Army Court of Military Review affirmed the approved findings of guilty and only so much of the sentence, a bad conduct discharge, forfeiture of $737 pay per month for 5 months, confinement for 3 months, and reduction to E-1.  

3.  On 20 June 2003, the sentence was ordered to be executed.

4.  The applicant was separated from the Army on 31 October 2003, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

5.  The applicant’s service record shows he had 74 days of time lost as a result of his military confinement (20 May 2002 through 1 August 2002).      

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order Number 103, dated 20 June 2003, pursuant to appellate reviews. 

2.  Special Court-Martial Order 9, dated 25 July 2002, reflects sentence adjudged on 20 May 2002.  His punishment consisted of reduction to E-1, confinement for 5 months, forfeiture of pay in the amount of $1,600.00 per month for 5 months, and a bad conduct discharge.  On 25 July 2002, only so much of the sentence of reduction to E-1, forfeiture of $1,600.00 pay per month for 5 months, confinement for three months, and bad conduct discharge was approved.

3.  There are 10 NCOERs in the applicant’s record; however, only the last two NCOERs for period covering April 2001 through December 2001, and January 2002 through May 2002 are obtained.  The applicant was rated as Marginal and received 5/5 from the senior rater, and Fully Capable, 4/3, respectively.

4.  Special Court-Martial Order 1, dated 11 January 2001, reflects sentence adjudged on 5 May 2000.  His punishment was to be reprimanded.  He was found guilty of the following charges:  Charge 1, violation of Article 86 x 2, AWOL (990317-990318, 990322-990324); Charge II, violation of Article 91 x 2, disobeyed an NCO order (990109), disrespectful in language toward an NCO, a 1SG (990318).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his online application, document entitled correct military record; certificate of participation; ARCOM certificate x 2, dated 1 December 1997 and 20 March 1997; DA Form 2-1; AAM certificate x 5, dated 9 March 1992, 1 August 1986, 31 March 1989, 15 June 1995, 12 December 1996; memorandum, dated 21 September 1992, subject: Deployment Date of applicant; certificate of achievement x 4, dated 30 July 1987, 5 January 1989, 1 February 1990, 29 December 1988.

POST-SERVICE ACTIVITY: 

The applicant provided none.

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, the documents 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 he refused to go on another deployment until his promotion orders for sergeant first class was provided him, but his command failed to provide him the promotion orders.  However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.

5.  The applicant included copies of his awards and recognitions indicating that he had good service.  The applicant’s service accomplishments and the quality of his service prior to the incidents that led to his discharge were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the adjudged court-martial sentence for violation of the Uniform Code of Military Justice.

6.  The applicant contends that he may have been racially harassed and discriminated by members of his command; however, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Likewise, there is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains insufficient evidence in support of his request for an upgrade of the discharge.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

7.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case

8.  In view of the foregoing, the reason for discharge and 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:  6 May 2013      Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: No

Witnesses/Observers: None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  An unsigned letter from workplace
	
2.  In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.


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

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			NA
Other:						NA








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)		AR20120021504

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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