IN THE CASE OF:  	Mr.

      BOARD DATE:  	28 June 2013

      CASE NUMBER:  	AR20130003469
___________________________________________________________________________

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 either uncharacterized or to general, under honorable conditions.  

2.  The applicant states, in effect, he appealed his discharge for a possible upgrade in 2002 and never received an answer.  He feels the circumstances surrounding his military career were unfair and inconsistent.  He has a prior honorable discharge for service between 1996 and 1999.  After reenlisting, he had some family problems and was treated inhumanly and unfairly by his chain of command that ultimately placed him in a detrimental position without any options for him as a Soldier and family man.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			12 February 2013
b. Discharge Received:			Bad Conduct 
c. Date of Discharge:				4 September 2002
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 								JJD, RE-4
e. Unit of assignment:				C Co, 1st Bn, 12th IN Rgt, Fort Carson, CO	
f. Current Enlistment Date/Term:		20 June 2001, 3 years
g. Current Enlistment Service:		0 years, 9 months, 9 days
h. Total Service:				5 years, 8 months, 12 days
i. Time Lost:					160 days  
j. Previous Discharges:			ARNG (990717-010619), NIF										RA (960717-990716), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					94
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AAM-2, AGCM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				None
SUMMARY OF SERVICE:

The record shows the applicant served in the Regular Army between 1996 and 1999. He received an honorable discharge, and upon his separation, he immediately joined the Army National Guard.  On 20 June 2001, he rejoined the Regular Army for a period of 3 years.  He was 26 years old at the time and a high school graduate.  His record documents the award of two AAMs and an AGCM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 8 August 2002, the applicant was found guilty by a special court-martial of the following charges and specifications:

      a. Absent without leave (AWOL) from 12 December 2001 until 21 May 2002
      b. Absent without leave (AWOL) from 4 December 2001 until 6 December 2001
      
2.  He was sentenced to a Bad Conduct Discharge, confinement for 1 month, forfeiture of pay in the amount of $737.00, and reduction to the grade of E-1.    

3.  On 2 April 2003, the court-martial 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 and on 19 April 2007, The United States Army Court of Military Review affirmed the approved findings of guilty as corrected (NIF) and ordered the sentence to be executed.  

5.  The record indicates the applicant had already been separated from the Army on 
4 September 2002, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4. Under normal circumstances the applicant would have been placed on excess leave until the sentence was affirmed by the Court of Military Review.

6.  The applicant’s service record shows he had 160 days of lost time for AWOL (011213-020521).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order Number 62, adjudged on 8 August 2002, not guilty of Article 85, desertion, but guilty of to the lesser included offense of AWOL.  His punishment consisted of reduction to E-1, forfeiture 0f $737.00 pay per month for 1 month, confinement for 1 month and a bad conduct discharge.

EVIDENCE SUBMITTED BY THE APPLICANT: 

DD Form 293, DD Form 149, and a request for records.  

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 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, the documents 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 he appealed his discharge for a possible upgrade in 2002 and never received an answer.  He feels the circumstances surrounding his military career were unfair and inconsistent.  He has a prior honorable discharge for service between 1996 and 1999.  After reenlisting he had some family problems and was treated inhumanly and unfairly by his chain of command that ultimately placed him in a detrimental position without any options for him as a Soldier and family man.  There is no record the applicant ever submitted an application for a discharge upgrade in 2002 as he states in his application.

5.  The applicant’s prior service accomplishments and the overall quality of his service prior to the incidents that caused his court-martial were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant clemency.  Moreover, 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.  

6.  The applicant contends he was treated unfairly and inconsistently; however, 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 his rights were fully protected throughout the court-martial process.   

7.  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:  28 June 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)		AR20130003469

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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