IN THE CASE OF:	Mr. 

      BOARD DATE:  	30 October 2013

      CASE NUMBER:  	AR20130006579
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review, the Board determined that notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26 and 28, contains entries, which requires correction.  

2.  Accordingly, the Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority pursuant to the Special Court-Martial Order Number 2, dated 24 May 2001, which indicates the General Court-Martial Convening Authority’s “Action,” in pertinent part, approved the applicant’s request for discharge pursuant to the provision of Chapter 10, Army Regulation 635-200, on 24 May 2001, for the issuance of a discharge under other than honorable conditions:

a. block 25, separation authority changed to AR 635-200, Chapter 10 
b. block 26, separation code changed to KFS, 
c. block 28, narrative reason for separation changed to In Lieu of Trial by Court-Martial.

3.  The Board further determined that notwithstanding the examiner’s Discussion and Recommendation which follows, and the propriety of the applicant's discharge, the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service, and undue hardship, and as a result it is inequitable.  Accordingly, the Board voted to grant full relief by upgrading the applicant’s characterization of service to general, under honorable conditions.  The Board determining that the reason for discharge was proper and equitable and voted not to change it, further directed that this action entails restoration of grade to E-4/SPC




      
      
      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 to upgrade his characterization of service from bad conduct to general, under honorable conditions.  

2.  The applicant states, in effect, a few weeks after two squad members brought their belongings from their barracks for storage at his house, he found out they had stolen the belongings, but did not turn them in.  He was charged with receiving stolen merchandise and destruction of property, court-martialed, and sentenced to 105 days of confinement and discharged from the Army.  Another Soldier accused of the same charges was given a Chapter 10 discharge.  The applicant’s attorney was not presented with the paperwork from his court-martial in a timely manner in order to file an appeal, until five months later.  The Staff Judge Advocate recommended his discharge be changed because of the delays.  It was not.  The GCMCA then filed paperwork approving his discharge be changed to Chapter 10.  It was not.  In addition, his discharge paperwork was misplaced.  After many years of calling and going to the records center in St. Louis, he was finally discharged from the Army in 2007, although he had not served since early 2001.  He requests for an upgrade because the discharge he was supposed to receive per the GCMCA did not occur due to his paperwork being misplaced for over 6 years and his original punishment was not equitable compared to the other Soldier who faced the same charges.  He feels this could have been fixed in 2001, if not for the delayed appeal process and paperwork issues he had to deal with. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	2 April 2013
	b.	Discharge Received:	Bad Conduct Discharge
	c.	Date of Discharge:	6 July 2007
	d.	Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3, JJD, 
			RE-4
	e.	Unit of assignment:	Co C, 5th Engr Bn, 1st Engr Bde, USAMANSCEN & 
			Fort Leonard Wood, Fort Leonard Wood, MO
	f.	Current Enlistment Date/Term:	11 June 1998, 3 years
	g.	Current Enlistment Service:	8 years, 10 months, 0 days
	h.	Total Service:	10 years, 10 months, 8 days
	i.	Time Lost:	85 days
	j.	Previous Discharges:	DEP (950614-960605) / NA
			RA   (960606-980610) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	12B10, Combat Engineer 
	m.	GT Score:	NIF
	n.	Education:	HS Graduate
	o.	Overseas Service:	NIF
	p.	Combat Service:	NIF
	q.	Decorations/Awards:	AGCM; NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 6 June 1996, and reenlisted on 11 June 1998, for a period of 3 years.  He was 18 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He completed 10 years, 10 months, and 8 days of creditable federal service which included 2,295 days of excess leave (010325-070706).

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 9 November 2000, the applicant was found guilty by a special court-martial, empowered to adjudge a bad conduct discharge, of having knowledge of a larceny and burglary committed by two Soldiers and prevented their apprehension by wrongfully keeping their stolen property in his home (000513-000710), and of having knowledge of a larceny and burglary, prevented their apprehension by wrongfully disposing of the stolen property (000513).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for four months, forfeiture of $200 pay per months for five months, and reduction to E-1.  

2.  On 24 May 2001, only so much of the sentence as provides for reduction to E-1, confinement for 105 days, and forfeiture of $200 pay per month for five months was approved.  The approved sentence was followed by further action that the request for discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, was approved with an under other than honorable conditions discharge.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review pursuant to Article 69(a), UCMJ.

3.  The record is void of the documented subsequent appellate reviews.  However, following the review by the Court of Military Review, The United States Army Court of Military Review would have affirmed the approved findings of guilty and the sentence, and ordered the sentence to be executed.

4.  Accordingly the applicant was separated from the Army on 6 July 2007, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

5.  The applicant’s service record shows he had 85 days of time lost for confinement (9 November 2000 until his release from confinement on 1 February 2001).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order, sentence adjudged on 9 November 2000.  His punishment consisted of reduction to E-1, confinement for 4 months, forfeiture of pay in the amount of $200.00 per month for 5 months, and a bad conduct discharge.
2.  Special Court-Martial Order Number 2 (Corrected Copy), dated 24 May 2001, that announced the following “Action” by the General Court-Martial Convening Authority:  

“The findings of guilty are approved.  Only so much of the sentence as provides for reduction to the grade of Private E1, confinement for 105 days, and forfeiture of $200.00 pay per month for 5 months, is approved and ordered executed.  The accused’s request for discharge pursuant to the provision of chapter 10, AR 635-200, was approved on this date for the issuance of a discharge under other than honorable conditions.  The record of trial is forwarded pursuant to Article 69(a), UCMJ.”

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided memorandum, dated 24 May 2001, subject: Post-Trial Discharge for the Good of the Service [the applicant’s standard name line], rendered by the SJA; memorandum, dated 17 April 2001, subject: R.C.M. 1105/1106 Submission [applicant’s court-martial case], rendered by applicant’s defense counsel; and Action by the GCMCA, dated 24 May 2001, signed by the GCMCA.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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.   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 he was not discharged under the provisions of Chapter 10, AR 635-200, as approved by the GCMCA because his paperwork was misplaced for over six years.  However, the basic authority of Army Regulation 635-200 provides that a Soldier is 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.  The available evidence shows his court-martial sentence was approved by the GCMCA.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Although the documented appellate review process are not contained in his Army Military Human Resource Record, the available records further indicate he was placed on an involuntary excess leave pending the appellate review of his case from 25 March 2001 through 6 July 2007.  Accordingly, the requirement to complete the appellate review and the subsequent affirmed sentence ordered duly executed resulted in his discharge on 6 July 2007.  

5.  Furthermore, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced sufficient evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains insufficient evidence in support of his request for an upgrade of the discharge.  Moreover, because relevant and material facts stated in a court-martial specification are presumed to be established facts, any issues relating to the applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  Further, with respect to a discharge adjudged by a special court-martial, the action of the Board is restricted to upgrades based on clemency.  

6.  The applicant contends his original punishment was not equitable compared to the other Soldier who faced the same charges.  However, applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  Thus, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.

7.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.
8.  In view of the foregoing, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable; therefore, recommend the Board deny clemency.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  30 October 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(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:			In Lieu of Trial by Court-Martial (Administrative)
Change Authority for Separation:	AR 635-200, Chapter 10
Change RE Code to:		NA
Grade Restoration to:		E-4/SPC
Other:  				Separation Program Designator (SPD) Code KFS















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)		AR20130006579

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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