IN THE CASE OF:  	Mr.

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130000225
___________________________________________________________________________

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 to honorable.  

2.  The applicant states, in effect, that after one honorable discharge and 72 months of service to his country he believes his discharge was inequitable because it was based on an isolated incident.  He was deployed and upon his return he found out his wife had drained all his funds and left him.  He understands he made some bad choices and accepts responsibility for his actions.  Since leaving the Army he has remarried, completed a Bachelor of Science degree and is now in a position of great responsibility.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			17 December 2012
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				8 September 2000
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 								JJD, RE-4
e. Unit of assignment:				C Btry, 3d Bn, 82d FA Rgt, Fort Hood, TX	
f. Current Enlistment Date/Term:		6 June 1996, 3 years
g. Current Enlistment Service:		1 years, 3 months, 2 days
h. Total Service:				8 years, 2 months, 17 days
i. Time Lost:					47 days  
j. Previous Discharges:			RA (920505-960605), HD	
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		13B1P, Cannon Crewmember
m. GT Score:					115
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ARCOM, AAM, AGCM-2, NDSM, NPDR, 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 5 May 1992 and reenlisted two times.  On his last reenlistment of 6 June 1996, he was 22 years old, and a high school graduate.  His enlistment contract shows he reenlisted for a period of 3 years.  His record documents the awards of an ARCOM and an AAM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 15 June 1999, the applicant was found guilty by a special court-martial of the following charges and specifications:

      a. AWOL from 24 February 1999 until 28 March 1999
      b. AWOL from 1 April 1999 until 14 April 1999 
      c. Wrongfully using methamphetamines (981201-981215)
      
2.  He was sentenced to a Bad Conduct Discharge and reduction to the grade of E-1.

3.  On 17 September 1999, the sentence was approved except for the part extending to a bad conduct discharge.  

4.  On 31 August 1999, the applicant was placed on excess leave for 375 days (990831-000908).

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 13 July 2000, 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 8 September 2000, 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 two periods of AWOL.  The first period was for 33 days (990224-990328) and the second period of AWOL for 14 days (990401-990414).  He surrendered both times.  Total time lost is 47 days.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order adjudged on 15 June 1999, guilty of all charges and specifications as described in paragraph 1 above.  His punishment consisted of reduction to   the grade of E-1 and a bad conduct discharge.

2.  Company Grade Article 15 issued on 31 March 1998 for failure to report to his designated place of duty on two occasions (980310 and 980309).  His punishment consisted of forfeiture of pay in the amount of $97.43.

3.  Four NCOERs as follows:

	a. March 1996 through January 1997, rated as among the best, 2/2
	b. February 1997 through January 1998, rated as among the best, 1/1
	c. February 1998 through January 1999, rated as fully capable, 2/2
	d. February 1999 through May 1999, rated as marginal, 5/5 


EVIDENCE SUBMITTED BY THE APPLICANT: 

None provided with the application.

POST-SERVICE ACTIVITY: 

The applicant states he has obtained a bachelor’s degree.

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.  The applicant contends that his discharge is inequitable because of his good service.  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 was having family issues and had good service prior to the isolated incidents that caused his discharge from the Army.  However, this service was determined not to be sufficiently mitigating to warrant clemency or an upgrade to the characterization of the discharge.  Moreover, the applicant 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 court-martial conviction and his bad conduct discharge.    

5.  The applicant contends he had a single incident of misconduct; however, the record indicates he was charged with two specifications of AWOL and one of wrongfully using methamphetamines.  The discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by one or more incidents provides the basis for a characterization.  The applicant's incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

6.  The applicant states that since leaving the Army he has obtained a bachelor’s degree.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that this accomplishment did not overcome the reason for discharge and characterization of service granted.  

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

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: 	Records Review   Date:  8 May 2013	Location: Washington, DC

Did the Applicant Testify?   NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change:  0	No Change:  5
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:			NA
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)		AR20130000225

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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