IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 May 2013

      CASE NUMBER:  	AR20130001809
___________________________________________________________________________

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 determined the discharge was both proper and equitable 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 and the reason for his separation be changed.    

2.  The applicant states, in effect, in reviewing his discharge proceedings, the approving authority did not approve a bad conduct discharge.  The other punishments were approved such as a reduction to E-1, and a forfeiture of all pay and allowance.  However, if you read the last statement of the filings, he did not approve a bad conduct discharge in his case. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			14 January 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				13 April 2011
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 								JJD, RE-4
e. Unit of assignment:				PCF Spec Proc Co, Fort Knox, KY
f. Current Enlistment Date/Term:		3 August 2009/OAD, 400 days
g. Current Enlistment Service:		1 year, 8 months, 11 days
h. Total Service:				5 years, 3 months, 7 days
i. Time Lost:					None 
j. Previous Discharges:			ARNG-051207-060522/NA											ADT-060523-061012/HD											ARNG-061013-070901/NA											OAD-070902-080903/HD											ARNG-080904-090802/NA			
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		31B10, Military Policeman
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (090803-100725)
q. Decorations/Awards:			AAM, NDSM, GWOTSM, ASR, AFRSM, CAB
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 Army National Guard on 7 December 2005 for a period of 8 years.  He was 26 years old at the time of entry and a high school graduate.  He served in Mississippi Army National Guard, and Iraq.  He earned an AAM, CAB, NDSM, GWOTSM, AFRM and completed 1 year, 8 months, and 11 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 10 July 2010, the applicant was found guilty by a special court-martial of 4 specifications of wrongful attempts to distribute Diazepam, commonly known as Valium, a schedule IV controlled substance.  

2.  He was sentenced to a Bad Conduct Discharge, and to be reduced to the grade of E-1.  

3.  On 4 September 2010, the sentence was approved except for the part extending to a bad conduct discharge.

4.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 4 February 2011, 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 13 April 2011, 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 165 days of excess leave (101031-110413).

7.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order adjudged on 4 September 2010, guilty of all charges and specifications as described in paragraph 1 above.  His punishment consisted of reduction to 
E-1, and a bad conduct discharge.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application dated 13 January 2013, a copy of a DD Form 214, and a copy of SPCM Order 6, dated 4 September 2010.

POST-SERVICE ACTIVITY:  

None were 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 special 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 merit an upgrade of the applicant's discharge.

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 in a review of his discharge, the approving authority did not approve a bad conduct discharge.  After examining the applicant’s record of service, the documents and the issues submitted with the application, it appears the applicant misinterpreted his discharge documents.  The record shows that on 4 February 2011 the United States Court of Military review affirmed the findings of the Special Court Martial and ordered the bad conduct discharge to be executed.

5.  The applicant requested a change to the narrative reason for the discharge.  However, the Army Discharge Review Board does not have the jurisdictional authority to change a discharge or dismissal resulting from a special court-martial. 

6.  Therefore, 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:  Records Review	 Date: 17 May 2013           Location: Washington, DC

Did the Applicant Testify?  NA 

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:			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)		AR20130001809



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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