IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130004512
___________________________________________________________________________

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 that clemency is warranted based on the overall length and quality of the applicant’s service.  Accordingly, the Board voted to grant full relief by upgrading the applicant’s characterization of service to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.



      
      
      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 an upgrade of his bad conduct discharge to general, under honorable conditions. 

2.  The applicant states, in effect, he has received two years of rehabilitation and counseling, and needs an upgrade to his discharge so he can continue to receive more VA benefits.  Additionally, he would like to reenlist in the active duty Army if possible.  He never received any type of rehabilitation or assistance from his unit.  He was stripped of his rank, thrown in prison, and discharged with a BCD as an example to the other Soldiers in his unit.  He has since turned his life around and has become active in his church and has received counseling from his pastor.  Due to the type of discharge he received it has been difficult for him to find a good job.  He has to pay for college, medical expenses and dental work out of pocket.  He has been living off of welfare and food stamp benefits in order to provide for his family.  As an 18 year old he had no idea that smoking marijuana would change his life like it has.  He is now 23 years old and is far wiser than before.  He needs a second chance to prove to his family and his country that he can be something great if given the opportunity.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 March 2013	
b. Discharge Received:		Bad Conduct
c. Date of Discharge:			22 July 2009	
d. Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3, JJD, 							RE-4	
e. Unit of assignment:			C Battery, 1st Battalion (Airborne), 321st Field 							Artillery Regiment, Fort Bragg, NC			
f. Current Enlistment Date/Term:	16 January 2007, 3 years, 17 weeks
g. Current Enlistment Service:	2 years, 5 months, 26 days
h. Total Service:			2 years, 5 months, 26 days
i. Time Lost:				11 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	11B10, Cannon Crewmember
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:		No
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 16 January 2007, for a period of 3 years,       and 17 weeks.  He was 17 years old at the time of entry, a high school graduate, and completed 2 years, 5 months, and 26 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 24 July 2008, the applicant was found guilty by a special court-martial of failure to report on (080308), (080309), and (080418) and wrongfully using marijuana between (080309 and 080409).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 60 days, and reduction to E-1.  

2.  On 24 July 2008, the sentence was approved with any sentence of confinement in excess of 15 days disapproved.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 22 December 2008, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

3.  On 21 May 2009, the sentence was ordered to be executed.

4.  The applicant was separated from the Army on 22 July 2009, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

5.  The applicant’s service record shows he had 11 days of time lost for being sentenced to military confinement (24 July 2008 to 4 August 2008).  The applicant’s DD Form 214 reflects 352 days of excess leave (080805-090722).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order Number 82 dated, 21 May 2009 and Special Court-Martial Order Number 7 dated 27 October 2008.

2.  Department of the Army Report of Result of Trial dated 5 August 2008.

3.  The applicant’s record contains a memorandum for record dated, 8 July 2008, that refers to a period of AWOL 30 September 2006 that is prior to the applicant’s date of enlistment.  Therefore, the memorandum cannot be considered an accurate source document.

4.  Request and Authority for Leave dated, 5 August 2008 which indicates the applicant was place on voluntary excess leave.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, copy of an identification card, social security print out, special court-martial order number 7, and 2 copies of a DD Form 214.

POST-SERVICE ACTIVITY: 

DD Form 214, SPCM Order, copy of ID card, and copy of Social Security verification form

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.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to warrant clemency:

      a.  In reviewing the circumstances of the case, it was noted the applicant had completed basic and MOS training.  He was seventeen years old at the time of entry into the Army, and appears to have been immature during the period of enlistment under review.  
      
      b.  The gravity of the applicant’s transgressions and contention that he was used as an example to other Soldiers were carefully considered.   While missing morning accountability formation and the use of illegal drugs is not condoned; the applicant’s misbehavior does not appear to rise to the level of misconduct typically associated with confinement and a bad conduct discharge.  
      
      c.  Therefore, it appears that the severity of the punishment is too harsh.  The record shows the SPCM adjudged as part of the sentence, 60 days of confinement; however, the court-martial convening authority only approved confinement for 15 days, thus by this action indicating the sentence was too severe.  

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh.

4.  The applicant has expressed an interest in rejoining the Army.  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. 

5.  The records show the proper discharge and separation authority procedures were followed in this case.  

6.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant full relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review		Date:  28 August 2013      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  5	No Change:  0
Reason Change:	NA	No Change:  NA
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable Conditions
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)		AR20130004512



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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