IN THE CASE OF:  	Mr. 

      BOARD DATE:  	31 July 2013

      CASE NUMBER:  	AR20130002161
___________________________________________________________________________

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 honorable.  

2.  The applicant states, in effect, he went AWOL because he needed to protect his mother from his very abusive father.  When he went AWOL the country was not at war.  He returned after 11 September 2001 and was charged as a deserter.  He feels as though his discharge was too harsh.  Lastly, the applicant contends there are several inaccuracies on the clemency documents and DD Form 214.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 January 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				10 February 2006 
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 							JJD, RE-4
e. Unit of assignment:				HHC, 1st Battalion, 64th Armor Regiment, 3d 							Infantry Division, Fort Stewart, GA
f. Current Enlistment Date/Term:		16 June 1999, 4 years/block 12a on the 								applicant’s DD Form 214 date entered active 							duty this period is incorrect and should read 							(990616), see enlistment contract
g. Current Enlistment Service:		4 years, 3 months, 23 days
h. Total Service:				4 years, 3 months, 23 days
i. Time Lost:					854 days
j. Previous Discharges:			None							
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		91W10, Health Care Specialist
m. GT Score:					101
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			No
u. Prior Board Review:				No








SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 16 June 1999 for a period of 
4 years.  He was 18 years old at the time and was a high school graduate.  His record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 11 March 2004, the applicant was found guilty by a special court-martial for being AWOL for 854 days (010706-031106).

2.  He was sentenced to a bad conduct discharge, reduction to E-1, and confinement for 
9 months.  

3.  On 27 August 2004, the sentence was approved.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence is not contained in the available record and government regularity prevails in the judicial process.  

4.  On 29 July 2005, the sentence was ordered to be executed.

5.  The applicant was separated from the Army on 29 July 2005, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

6.  The applicant’s service record shows he had 854 days of time lost for being AWOL from          6 July 2001 until 6 November 2003 until he was apprehended by civilian authorities.  He was also confined from 11 March 2004 until 14 October 2004 for a total of 218 days.  Total lost time was 1,072 days.

7.  He was placed on excess leave for 95 days (041015-050117).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A Special Court-Martial Order adjudged on 11 March 2004, which shows the applicant, was found guilty as described in paragraph 1 above.  His punishment consisted of a bad-conduct discharge, reduced to E-1 and confinement for 9 months.  

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293; a DD Form 214; and Special-Court Martial Order documents and allied documents. 



 
POST-SERVICE ACTIVITY: 

None listed by the applicant.

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, 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 he went AWOL because he needed to protect his mother from his very abusive father.  However, he 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.   

5.  The applicant further contends when he went AWOL the country was not at war.  However, he returned after 9-11 and he was charged as a deserter, so his discharge was unjust.  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 his discharge was too harsh or unjust.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

6.  The applicant contends there are several inaccuracies on the clemency documents and DD Form 214.  However, the applicant’s request does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.  

7.  Additionally, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

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:  31 July 2013         Location: Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA

Witnesses/Observers:  NA

Board Vote:
Character Change:  Change:      0  No Change:    5
Reason Change:      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)		AR20130002161



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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