IN THE CASE OF:  	

      BOARD DATE:  	17 April 2013

      CASE NUMBER:  	AR20130000687
___________________________________________________________________________

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 general, under honorable conditions or to fully honorable  

2.  The applicant states, in effect, that he made a bad decision that caused his discharge but served his first term of service honorably.  He is now looking for an upgrade of the discharge in order to help his daughter with her education.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 January 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				27 August 2004
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3								JJD, RE-4
e. Unit of assignment:				58th EN Co, Regimental Support Sqdn, Fort 							Irwin, CA 	
f. Current Enlistment Date/Term:		14 November 2001, NIF
g. Current Enlistment Service:		2 years, 7 months, 0 days
h. Total Service:				9 years, 4 months, 26 days
i. Time Lost:					75 days
j. Previous Discharges:			RA (950117-981021), HD
							RA (981022-011113), HD                     
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		31U10, Signal Support Systems Specialist
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AAM, AGCM, NDSM, 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 17 November 1995 and reenlisted two times.  On his last reenlistment of 14 November 2001, he was 25 years old.  His record documents no acts of valor or significant achievement.  


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The service record shows that on 14 November 2001, the applicant was found guilty by a special court-martial:  The specific charges and specifications are not contained in the available records.
      
2.  Special Court-Martial Order Number 27, HQDA, US Army and Fort Sill, dated 2 March 2004, indicates he was sentenced to a Bad Conduct Discharge, forfeiture of pay in the amount of $695.00 per month for 3 months, confinement for 3 months, and reduction to the grade of   E-1.    

3.  On 28 January 2002, the applicant was released from confinement and was placed on excess leave for 943 days (020128-040827).

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 2 March 2004, The United States Army Court of Military Review affirmed the approved findings of guilty and ordered the sentence to be executed.  

5.  The applicant was separated from the Army on 27 August 2004, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4.

6.  The applicant’s service record shows he had 75 days of lost time as a result of his military confinement (011114-020127).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order, sentence adjudged on 14 November 2001, the applicant was credited with 1 day of confinement towards his sentence.  His punishment consisted of reduction to E-1, confinement for 3 months, forfeiture of pay in the amount of $695.00 per month for 3 months, and a bad conduct discharge.

2.  Four NCOERs, the last one covered a period of January 2005 through September 2009, he was rated successful by the rater and successful/superior (2/2) by the senior rater. 

EVIDENCE SUBMITTED BY THE APPLICANT: 

DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant states that he is the manager of a steak house.

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.  Although the charges and specifications of which the applicant was found guilty are not contained in his Army Military Human Resource Record, the available records indicate he was adjudged guilty by a special 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's contentions were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  There is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  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 in this case and the application contains no documentation or further evidence in support of this request for clemency.  

5.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., court-martial charge sheet) sufficient to explain the facts, circumstances, and reasons underlying the court-martial for the Board's consideration.

6.  Therefore, based on the available evidence and the presumption of government regularity, it appears the characterization of service is proper and equitable, thus recommend the Board deny clemency. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review   Date:    17 April 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)		AR20130000687

Page 5 of 5 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1