IN THE CASE OF:  	Mr 

      BOARD DATE:  	10 July 2013

      CASE NUMBER:  	AR20130001326
___________________________________________________________________________

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 fully honorable.  

2.  The applicant states, in effect, that he is sorry for the incident that occurred resulting in his discharge.  He contends he has paid the price for his actions and feels he never had a chance to speak in his own behalf.  He contends it has been 9 years and he is still hunted by the events that led to his discharge and he is highly depressed and can't sleep or trust anyone due to the nature of his conviction.  He is now requesting help because he is unable to adapt to people and believes he was unfairly prosecuted.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			17 January 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				17 June 2005
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 								JJD, RE-4
e. Unit of assignment:				B Co, 602d ASB, APO AE
f. Current Enlistment Date/Term:		30 October 2001, 3 years
g. Current Enlistment Service:		3 years, 4 months, 2 days
h. Total Service:				4 years, 5 months, 19 days
i. Time Lost:					106 days  
j. Previous Discharges:			USN-950824-961010/GD
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		63W10, Wheel Vehicle Repairer
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				Korea
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:		

After serving in the United States Navy the applicant enlisted in the Regular Army on             30 October 2001, for a period of 3 years.  At the time of enlistment he was 27 years old.  The applicant's record indicates he served in Korea and documents no acts of valor or significant achievement.   He completed a total of 4 years, 5 months, and 19 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 11 December 2003, the applicant was found guilty by a special court-martial of the following charge: 

      a.  disobeying a lawful order from a noncommissioned officer (030819)
      
      b.  being disrespectful in language and deportment towards a noncommissioned (030819)
      
      c.  being disrespectful in language and deportment towards a senior noncommissioned (030823)  
      
      d.  assault on another Soldier x 3 (030705, 030711 and 030920)
      
2.  He was sentenced to a Bad Conduct Discharge, reduction to the grade of E-1, and confinement for 4 months.

3.  On 11 March 2004, the sentence was approved except for the part extending to a bad conduct discharge.  

4.  On 4 February 2005, the record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 12 May 2005, 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 17 June 2005, 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 106 days of lost time (031211-040325) as a result of his military confinement.  He was also placed on excess leave for 449 days (040326-050617).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order adjudged on 11 December 2003, which shows the applicant, was found guilty as described in paragraph 1 above.  His punishment consisted of a Bad Conduct Discharge, reduction to the grade of E-1 and confinement for 4 months.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a self-authored statement, letters of support (3), military police investigative summary, copy of a sworn statement, dated 12 July 2003, and a copy of a DD Form 214 for a prior period of service. 


POST-SERVICE ACTIVITY: 

The applicant contends that since his discharge he has been productive by completing medical school and barbering school.

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, 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's contends he was unjustly discharged.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.

5.  The applicant contends he is suffering from medical issues and would like help with coping with them.  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.

6.  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:  10 July 2013          Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  1	No Change:  4
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:			NA
Change Authority for Separation:	NA
Change RE Code to:		NA
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)		AR20130001326



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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