IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 July 2013

      CASE NUMBER:  	AR20130002698
___________________________________________________________________________

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 honorable.  

2.  The applicant states, in effect, he requests an upgrade so he can obtain gainful employment or possibly reenter the military to serve honorably.  He was not afforded his proper day in court because he was scared and suffering from mental issues.  He went absent without leave (AWOL) because his girlfriend called and told him she was going to hurt herself; he explained the situation to several members of his chain of command, asked for leave and received no assistance.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 February 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				14 September 2007
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 							JJD, RE-4
e. Unit of assignment:				HHC, 1-210th Aviation Regiment, Fort Rucker, 							AL
f. Current Enlistment Date/Term:		6 March 2004/OAD period NIF
g. Current Enlistment Service:		3 years, 2 month, 25 days
h. Total Service:				8 years, 3 days
i. Time Lost:					104 days
j. Previous Discharges:			USMCR-(971012-971228)/NA									USMC-(971229-010831)/UOTH									ARNG-(030129-040128/HD									USARCG-(040129-040212)/NA									USAR-(040213-040305)/NA									    (Concurrent Service)
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, AFRM-W/”M” DEV, ASR,							MCGCM
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 U.S Marine Corps on 12 October 1997 and was discharged on 31 August 2001 with an under other than honorable conditions discharge.  He enlisted in the Army National Guard on 29 January 2003; the period of service is not contained in the file and he was discharged on 28 January 2004, with an honorable characterization of service.  He reenlisted in the Army National Guard on 13 February 2004, for a period of 3 years and 4 weeks; he was 24 years old at the time and a high school graduate.  His record indicates he earned an AFRM-W/”M” DEV.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 24 February 2005, the applicant was found guilty by a special court-martial for the following charges:  

     a.  committing an assault upon a sergeant by pointing at him with a dangerous weapon (handgun) x 2 (041205, 041205)

     b.  being AWOL (041010-041205)

2.  He was sentenced to a bad conduct discharge, confinement for 4 months and forfeiture of $700 pay x 4 months.

3.  On 2 May 2005, 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 and on          13 December 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

4.  On 2 June 2006, the sentence was ordered to be executed.

5.  The applicant was separated from the Army on 14 June 2007, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

6.  The applicant’s service record shows he had 5 days of time lost for being AWOL from          5 December 2004 until 9 December 2004, mode of return unknown.  He was also confined from 14 December 2004 until 22 March 2005, for 99 days.

7.  He was placed on excess leave for 906 days (050323-070914).








EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A Special Court-Martial Order adjudged on 24 February 2005, which shows the applicant, was found guilty as described in paragraph 1 above.  His punishment consisted of a bad-conduct discharge, confinement for 4 months and forfeiture of $700 pay x 4 months.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293; a DD Form 214; Special-Court Martial Order Number 126; and Discharge Orders 254-0153.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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, 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 needs an upgrade so he can obtain gainful employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  

5.  The applicant further contends he was not afforded his proper day in court because he was scared and suffering from mental issues.  The applicant bears the burden of presenting substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention he was denied his due process

6.  Further, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  

7.  The applicant also contends he went absent without leave (AWOL) because his girlfriend called and told him she was going to hurt herself; he explained the situation to several members of his chain of command, asked for leave and received no assistance.  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.  

8.  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.  

9.  The applicant would like to reenter the military to serve honorably.  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 an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

10.  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:  24 July 2013       Location: Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA

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)		AR20130002698



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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