IN THE CASE OF:  	Mr. 

      BOARD DATE:  	3 June 2013

      CASE NUMBER:  	AR20120021593
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board found no cause for clemency 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 his bad conduct discharge be upgraded.  

2.  The applicant states, in effect, he was unjustly discharged.  He contends his discharge was not in accordance with his military conduct or daily performance.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			16 November 2012
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				15 May 2008
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 								JJD, RE-4
e. Unit of assignment:				B Co, 94th EN Bn, APO AE
f. Current Enlistment Date/Term:		24 April 2003, 4 years
g. Current Enlistment Service:		3 years, 7 months, 25 days
h. Total Service:				3 years, 7 months, 25 days
i. Time Lost:					515 days  
j. Previous Discharges:			None
k. Highest Grade Achieved:			NIF
l. Military Occupational Specialty:		21B10, Combat Engineer
m. GT Score:					NIF
n. Education:					GED
o. Overseas Service:				Germany
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

The record shows the applicant enlisted in the Regular Army on 24 April 2003 for 4 years.  He was 18 years old and had a high school equivalency (GED).  He served in Germany.  His record documents no acts of valor or significant achievement.  He completed 3 years,              7 months, and 25 days of total active duty service.






SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 20 December 2005, the applicant was found guilty by a special court-martial of the following charges and specifications:

      a. stealing money from another Soldier in the amount of about $443.60 (050913)
      b. wrongfully appropriating the debit card of another Soldier (050913) 
      
2.  He was sentenced to a Bad Conduct Discharge, confinement for 8 months, and forfeiture of $823.00 pay per month for 8 months.

3.  On 18 May 2006, the sentence as provided for forfeiture of $823.00 pay per month for        6 months, confinement for 6 months and a Bad Conduct Discharge was approved and except for the part extending to a Bad Conduct Discharge was ordered to be executed.

4.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review, and on 4 February 2008, The United States Army Court of Military Review affirmed the approved findings of guilty and ordered the sentence to be executed.  The court only affirmed so much of the sentence as provided for a bad-conduct discharge.

5.  The applicant was separated from the Army on 15 May 2008, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4.

6.  The DD Form 214 (Report of Separation from Active duty) shows he completed 3 years, 7 months and 25 days of total creditable active military service.  This includes a period of excess leave for 623 days (060223-080515).

7.  The applicant’s record shows a period of time lost for 515 days (040921-060217).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order Number 6, dated 18 May 2006 which directed the forfeiture of $823.00 pay per month for 6 months and confinement for 6 months.

2.  Special Court-Martial Order 4, dated 4 February 2008 which directed the execution of the applicant's Bad Conduct Discharge.  

EVIDENCE SUBMITTED BY THE APPLICANT:

BIOPSYCHOSOCIAL Case Formulation, dated 18 February 2012.




POST-SERVICE ACTIVITY: 

None provided with the application.

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.  

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 the discharge he received was not in accordance with his military conduct or daily performance.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused his court-martial were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant clemency or an upgrade to the characterization of the discharge.  



5.  The independent document submitted by the applicant was noted.  However, there is no evidence in the record nor has the applicant submitted any to corroborate the discharge was the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service.  

6.  The records show the proper discharge and separation authority procedures were followed in this case

7.  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: Record Review	        Date: 3 June 2013         Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  1	No Change:  4
Reason Change:	0	No Change:  5
(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:	NA
Change RE Code to:		NA
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)		AR20120021593



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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