IN THE CASE OF:  	

      BOARD DATE:  	15 May 2013

      CASE NUMBER:  	AR20130000344
___________________________________________________________________________

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 and upgrade of his bad conduct discharge to honorable and a change to the narrative reason for his separation.

2.  The applicant states, in effect, that his record of service was free of any acts of misconduct.  He faced a court-martial for his first and only act of misconduct.  He knew that he was not physically or mentally prepared to redeploy to Iraq, he went AWOL as an act of last resort because his chain of command had ignored his plea for help.  At the time of his discharge he was not aware of what was wrong but with the help of a clinical psychologist he was diagnosed with PTSD and possible TBI as a result of a head injury he suffered while in Iraq.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 January 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				13 March 2008
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3								JJD, RE-4
e. Unit of assignment:				Rear Detachment, Special Troops Battalion 							Fort Hood TX	
f. Current Enlistment Date/Term:		2 April 2003, 5 years
g. Current Enlistment Service:		4 years, 1 month, 14 days
h. Total Service:				4 years, 1 month, 14 days
i. Time Lost:					302 days  
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		31B10, Military Police Specialist
m. GT Score:					99
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (dates NIF)
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 2 April 2003, for a period of 5 years.  He was 18 years old and a high school graduate at the time he entered the Army.  His record indicates he served 4 years, 1 month, and 14 days of active duty which included 373 days of excess leave.  The applicant served one combat tour and his record does not reflect any acts of valor or meritorious achievements.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The service record shows that on 23 October 2006, the applicant was found guilty by a special court-martial of desertion, in that on 16 November 2005, the applicant did, with the intent to avoid hazardous duty, namely deployment to, and service in Iraq, quit his unit and did remain so absent in desertion until 5 June 2006.

2.  He was sentenced to a Bad Conduct Discharge (BCD), confinement for 4 months, forfeiture of pay in the amount of $849.00 per month for 4 months, and reduction to the grade of E-1.  

3.  On 13 April 2007, the sentence was approved except for the part extending to the BCD.  

4.  On 7 March 2007, the applicant was placed on excess leave for 373 days (070307-080313).  

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 20 December 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and ordered the sentence to be executed.  The court affirmed the sentence as approved which provided for a bad conduct discharge, reduction to E-1, forfeiture of $849.00 for 4 months, and confinement for 4 months.  

6.  The applicant was separated from the Army on 13 March 2008, 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 100 days of military confinement (061023-070130); an AWOL period of 202 days (051116-060605), surrendered.  This amounted to a total of 302 days time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special court-martial Order adjudged on 23 October 2006 for desertion.  The punishment he received consisted of a BCD, confinement for 4 months, forfeiture of $849.00 for 4 months and reduction to the grade of E-1.

EVIDENCE SUBMITTED BY THE APPLICANT: 

Timeline and background of events, letter of appeal from his father, response to appeal letter, bullet points for the Veterans Administration, Doctor H’s letter, four character reference letters, photo of injuries, other photos, dismissal of charges’ letter, federal tax letter and related documents, court-martial documents and Enlisted Record Brief.



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 incident of misconduct.  The service record indicates the applicant was adjudged guilty by a special court-martial and the sentence was approved by the convening authority and affirmed by The United States Army Court of Military Review.  

3.  The applicant requested a change in the reason for his discharge; however, court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The Army Discharge Review Board does not have the authority to change the reason for the discharge when it is given as a result of a court-martial conviction.  

4.  The Board is empowered to change the characterization of 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.  

5.  The applicant contends that he was inequitably discharged for an isolated incident in his 36 months of service which included a combat tour.  He now suffers from PTSD and possible TBI.  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 clemency or an upgrade to the characterization of discharge due to the severity of his offense.  Moreover, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

6.  Further, the service record contains no evidence of PTSD or TBI diagnosis and the applicant submitted a doctor’s statement indicating she believes the applicant may be suffering from PTSD based on the events related to her by the applicant.  However, there are many Soldiers with the same condition that completed their service successfully.

7.  The applicant contends that his chain of command did not give hive him the proper support and treatment when he asked for help.  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 court-martial process.

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:     15 May 2013	Location: Washington, DC

Did the Applicant Testify?  No 

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:				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)		AR20130000344

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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