IN THE CASE OF:  	

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130000697
___________________________________________________________________________

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.

2.  The applicant states, in effect, that his service was excellent and would like to receive educational and medical benefits for injuries sustained while in active duty and which include PTSD, TBI, and other medical conditions. He also would like to have the opportunity to reenlist in the Army and join his brothers in Arms.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			31 December 2012
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				29 April 2011
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3 								JJD, RE-4
e. Unit of assignment:				A Co, 3d Special Troops Battalion,                        						Fort Campbell, KY	
f. Current Enlistment Date/Term:		20 July 2006, 4 years and 16 weeks, NIF
g. Current Enlistment Service:		4 years, 7 months, 21 days
h. Total Service:				4 years, 7 months, 21 days
i. Time Lost:					48 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		21B10, Combat Engineer
m. GT Score:					102
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (070921-081110)
q. Decorations/Awards:			ARCOM, NDSM, ICM-CS, GWOTSM, ASR								OSR, CAB
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 20 July 2006, for a period of 4 years and 16 weeks.  He was 21 years old and a high school graduate at the time he entered the Army.  His record indicates he served 4 years, 7 months, and 21 days of active duty which included 376 days of excess leave.  The record also indicates he served one combat tour; earned an ARCOM, and a CAB.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 29 January 2010, the applicant was found guilty by a special court-martial of the following charges and specifications:

      a. Conspiracy to commit larceny of firearms of a total value of more than $500 (090120)
      b. Two specification of providing a false statement (090303, 090304)
      c. Larceny of a firearm (090101-090303), of a value of about 	$250.00
      
2.  He was sentenced to a Bad Conduct Discharge (BCD), confinement for 2 months, and reduction to the grade of E-1.  

3.  On 8 June 2010, the sentence was approved except for the part extending to the BCD.  

4.  On 19 April 2010, the applicant was placed on excess leave for 376 days (100419-110429).  

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 24 January 2011, 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, reduction to E-1 and confinement for 2 months.  The automatic forfeitures of two thirds pay per month required by Article 58b, UCMJ, were waived and the funds paid to the accused’s wife.

6.  The applicant was separated from the Army on 29 April 2011, 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 48 days of military confinement (100129-100317) which is reflected as time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A special court-martial, adjudged on 29 January 2010, for conspiracy to commit larceny of firearms, two specification of providing a false statement, and larceny of a firearm.  The punishment he received consisted of a BCD, confinement for 2 months and reduction to the grade of E-1.

EVIDENCE SUBMITTED BY THE APPLICANT: 

None provided with the application.

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 that his service was excellent and now would like to get educational and medical benefits for injuries sustained while on active duty which include PTSD, TBI, and other medical conditions. He also would like to have the opportunity to reenlist in the Army.
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.  

5.  Moreover, the service record contains no evidence of PTSD or TBI diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

6.  Further, eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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?  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)		AR20130000697

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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