IN THE CASE OF:  	

      BOARD DATE:  	19 April 2013

      CASE NUMBER:  	AR20130000872
___________________________________________________________________________

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 under other than honorable conditions discharge be upgraded to general, under honorable conditions.  

2.  The applicant states, in effect, he was very young and was having a lot of personal issues when he got into trouble and was discharged.  He had some family issues, his wife was unfaithful and he had two infant children.  These stressors made him do stupid things that he now regrets.  Since leaving the Army he has become a productive citizen in his community but his discharge follows him around and he hopes he could get it upgraded in order to receive some VA benefits that could help him in his job search.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 January 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				4 November 2005
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3 								JJD, RE-4
e. Unit of assignment:				K Co, 159th Aviation Rgt, Hunter AAF, GA	
f. Current Enlistment Date/Term:		22 August 2000, NIF
g. Current Enlistment Service:		4 years, 10 months, 5 days
h. Total Service:				4 years, 10 months, 5 days
i. Time Lost:					131 days  
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		67U10, CH-47 Helicopter Repairer
m. GT Score:					NIF
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			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 22 August 2000, his enlistment contract is not contained in the service record.  He was 21 years old and had a high school equivalency (GED).  He was trained in MOS 67101, CH-47 Helicopter Repair, and was stationed at Fort Stewart, Georgia, when his court-martial was convened.  His record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 19 August 2002, the applicant was found guilty by a special court-martial of the following charges and specifications:

      a. Absent without leave (AWOL) from 10 May 2002 until 16 May 2002
      b. Two specifications of failing to report 
      c. Six specifications of disobeying a lawful order from a commissioned officer
      d. Two specifications of wrongfully using marijuana 
      e. Two specifications of wrongfully using cocaine
      
2.  He was sentenced to a Bad Conduct Discharge, confinement for 3 months, and reduction to the grade of E-1.  The sentence of confinement in excess of 5 months was suspended for a period of 5 months.  

3.  On 28 August 2003, the sentence was approved except for the part extending to a bad conduct discharge.  

4.  On 12 November 2002, the applicant was released from confinement and was placed on excess leave for 1,088 days (021113-051104).

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 25 August 2005, 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 and confinement for 3 months.

6.  The applicant was separated from the Army on 4 November 2005, 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 6 days of AWOL (020510-020515), and 125 days of lost time as a result of his military confinement (020711-021112), for a total of 131 days of time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order adjudged on 19 August 2002, guilty of all charges and specifications as described in paragraph 1 above.  His punishment consisted of reduction to   E-1, confinement for 3 months and a bad conduct discharge.

EVIDENCE SUBMITTED BY THE APPLICANT: 

DD Form 149, request for records, and a self-authored statement.
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.  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 that he was young, had a lot of personal issues and served well up until the time when he got into trouble.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Further, the applicant’s service accomplishments and the quality of his service prior to the incidents that caused his court-martial were carefully considered.  However, his 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 separation action under review.  

6.  The applicant desires an upgrade in order to have VA benefits that would help him find a better job.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Eligibility for veteran's benefits to include 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:    19 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)		AR20130000872

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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