IN THE CASE OF:  	Mr. 
      
      BOARD DATE:  	22 April 2013

      CASE NUMBER:  	AR20130000495
___________________________________________________________________________

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 an upgrade of his bad conduct discharge to a honorable characterization of service. 

2.  The applicant states, in effect, the he served honorably through 2 lengthy deployments.  He was a good Soldier that made a bad decision.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 January 2013			
b. Discharge Received:			Bad Conduct
c. Date of Discharge:				6 April 2007
d. Reason/Authority/SPD/RE Code:		Court-Martial, Other, 3, JJD, RE-4
e. Unit of assignment:				74th Infantry Detachment LRS, 173d Airborne							Brigade, APO AE
f. Current Enlistment Date/Term:		8 March 2002, 4 years
g. Current Enlistment Service:		4 years, 8 months, 1 days (creditable service)
h. Total Service:				6 years, 8 months, 2 days (creditable service)
i. Time Lost:					Confinement (040910 – 050207) for a total of 
147 days
j. Previous Discharges:			RA 000307-020307 / HD	
k. Highest Grade Achieved:			E-4 (P)
l. Military Occupational Specialty:		11B1P Infantryman
m. GT Score:					100
n. Education:					HS Graduate
o. Overseas Service:				Italy
p. Combat Service:				SWA Iraq/Afghanistan
q. Decorations/Awards:			AGCM, 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 applicant enlisted in the Regular Army on 8 March 2002, for a period of 4 years.  He was      27 years old at the time of entry and was a high school graduate.  He served in Italy and completed 6 years, 8 months, 2 days of creditable active duty service.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 10 September 2004, the applicant was found guilty by a special court-martial of wrongfully using cocaine x2 between (040508-040517), and (040518-040524); wrongfully distributing some amount of cocaine between (040508 - 040524); and making a false official statement (040601).  He was sentenced to forfeit two-thirds pay and allowances per month for 12 months, to be reduced to the grade of E-1, to be confined for six months, and to be discharged from the service with a bad-conduct discharge.  

2.  On 4 January 2005, the sentence was approved and then corrected by appeals on              6 April 2006.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

3.  On 22 September 2006, the sentence was ordered to be executed.

4.  The applicant was separated from the Army on 6 April 2007, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

5.  The applicant’s service record shows he had 147 days of time lost for being confined        10 September 2004 – 7 February 2005.  The applicant had 778 days of excess leave, creditable for all purposes except pay and allowances (050228 – 070406).          

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record contains the appropriate Special Court-Martial Order, dated 22 September 2006.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293, a promotion worksheet, award announcement, APFT score sheet, weapons training certificate, course completion certificate, order 339-16, recommendation for award, various medical documents, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant states no information concerning his post-service activities or accomplishments.  

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 served two deployments and was a good Soldier.  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 separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

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

6.  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:  22 April 2013   Location: Washington, DC

Did the Applicant Testify?  Yes		

Counsel: None	

Witnesses/Observers: Yes – two witnesses. 
DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1. The applicant submitted the following additional documents:	None
2. The applicant submitted the following additional issues:	None
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:	N/A	No Change:  N/A
(Board member names available upon request)

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



















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)		AR20130000495



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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