IN THE CASE OF:  	

      BOARD DATE:  	19 June 2013

      CASE NUMBER:  	AR20130002489
___________________________________________________________________________

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 general, under honorable conditions.  

2.  The applicant states, in effect, he has not been in any trouble with the law since he was discharged from the Army.  He would like to pursue a law enforcement career or reenlist and complete a term of service with a branch of the Armed Forces.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 February 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				11 February 2011
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3 								JJD, RE-4
e. Unit of assignment:				B Co, 1st Bn, 87th IN Regiment, Fort Drum, NY	
f. Current Enlistment Date/Term:		20 November 2008, 3 years and 21 weeks
g. Current Enlistment Service:		2 years, 1 month, 28 days
h. Total Service:				2 years, 1 month, 28 days
i. Time Lost:					24 days  
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					88
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM
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 November 2008, for a period of 3 years and 21 weeks.  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 30 September 2009, the applicant was found guilty by a special court-martial of the following charge:  Between 9 May 2009 and 24 May 2009, with intent to defraud, falsely pretended to be PFC RR, then knowing that the pretenses were false, and by the means thereof, did wrongfully obtain from adultfriendfinder.com and fling.com services of a value of over $500.00, to wit: access to swinger community websites to view other’s profiles and access communication services such as anonymous chat, webcam, and blogging.
      
2.  He was sentenced to a Bad Conduct Discharge, confinement for 4 months, reduction to the grade of E-1 and a forfeiture of pay in the amount of $863.00 for 4 months.

3.  On 24 October 2009, the applicant was released from confinement (after serving 24 days, pursuant to a pre-trial agreement).  He was placed on excess leave for 431 days (091208-110211).

4.  On 30 March 2010, the sentence was approved except for the part extending to a bad conduct discharge.  

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 3 December 2010, The United States Army Court of Military Review affirmed the approved findings of guilty and ordered the sentence to be executed.  

6.  The applicant was separated from the Army on 11 February 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 24 days of lost time (090930-091023) as a result of his military confinement.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order adjudged on 30 September 2009, which shows the applicant, was found guilty as described in paragraph 1 above.  His punishment consisted of a Bad Conduct Discharge, confinement for 30 days, reduction to the grade of E-1 and a forfeiture of pay in the amount of $863.00 for 4 months.

EVIDENCE SUBMITTED BY THE APPLICANT: 

No supporting documentation was provided with the application.




POST-SERVICE ACTIVITY: 

The applicant states he has not been in any troubles with the law since his discharge from the Army.

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 that since being discharged he has not been in any troubles with the law, and would like to pursue a law enforcement career, or rejoin the Service.  The applicant is commended for his efforts to be a good citizen.  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.

5.  The applicant would like the opportunity to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned a RE Code of 4.  A RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

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: 19 June 2013	        Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: 			None

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)		AR20130002489

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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