IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 January 2013

      CASE NUMBER:  	AR20130008044
___________________________________________________________________________

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 was supposed to have a fair trial.  He asked to be moved from his unit because he was treated different.  His mother had surgery and he was not allowed to visit her.  He had surgery on his mouth which is documented in his medical record.  Right after his surgery, the first sergeant tried to make him answer the phone all day.  The first charge was not following orders from a NCO.  His life has been messed up every since he got out.  He has been incarcerated for four years now.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			24 April 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				7 December 2000
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3, 							SEC IV, JJD, RE-4
e. Unit of assignment:				D Company, 2nd battalion, 327th Infantry, Fort 							Campbell, KY	
f. Current Enlistment Date/Term:		19 November 1996, 3 years 
g. Current Enlistment Service:		3 years, 8 months, 28 days
h. Total Service:				3 years, 8 months, 28 days
i. Time Lost:					111 days  
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		92Y10, Unit Supply Specialist
m. GT Score:					107
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ASR
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 19 November 1996, for a period of 3 years.  He was 18 years old at the time and was a high school graduate.  His record documents no acts of valor or significant achievement.  The applicant was retained in the service for 286 days for the convenience of the government, per AR 635-200, with 983 days of excess leave from 31 March 1998 to 7 December 1997.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 10 March 1998, the applicant was found guilty by a special court-martial of the following charge:  

     Charge 1: Article 86. Plea: Guilty. Finding: Guilty.
        Specification: Absent without authority on divers occasions between on or about 
28 October 1997 and on or about 1 December 1997. PIea: Guilty. Finding: Guilty.

     Charge II: Article 91. Plea: Not Guilty. Finding: Guilty.
        Specification: Willfully disobeyed a superior noncommissioned officer on or about 
25 November 1997. Plea: Not Guilty. Finding: Guilty.

     Additional Charge: Article 85. Plea: Not Guilty, but guilty of the lesser included offense of absence without leave, a violation of Article 86, UCMJ, and to a charge of violation of Article 86: Guilty. Finding: Not Guilty, but Guilty of a violation of Article 86, UCMJ.
        
        Specification: Absent in desertion from 9 December 1997 until apprehended on or about 
6 January 1998. Plea: Not Guilty, but guilty of the lesser included offense of absence without
leave, a violation of Article 86, UCMJ. and to a charge of violating Article 86: Guilty. Finding:
Not Guilty, but guilty of a lesser included offense of absence without leave from on or about
9 December 1997 until on or about 6 January 1998.

2.  He was sentenced to a bad conduct discharge, confinement for 100 days, and a forfeiture of pay in the amount of $400.00 for 5 months.

3.  On 29 March 1998, the applicant was released from confinement (after serving 20 days, pursuant to a pre-trial agreement).  He was placed on excess leave for 983 days (980331-001207).

4.  On 30 March 2010, the sentence was approved except for the part extending to a bad conduct discharge.  The accused was credited with 63 days of confinement against the sentence of confinement.

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 13 August 1998, The United States Army Court of Military Review affirmed the approved findings of guilty.  On 6 September 2000, the sentence was ordered to be executed.    

6.  The applicant was separated from the Army on 7 December 2000, 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 lost time for 28 days of AWOL (971209-980105), apprehended; 63 days for pre-trial confinement (980106-980309); and military confinement from the Special Court-Martial (980310-980329) for 20 days for a total of 111 days.  
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order adjudged on 10 March 1998, which shows the applicant, was found guilty as described in paragraph 1 above.  His punishment consisted of a bad conduct discharge, confinement for 100 days, and a forfeiture of pay in the amount of $400.00 for 
5 months.

EVIDENCE SUBMITTED BY THE APPLICANT: 

No supporting documentation was provided with the application.

POST-SERVICE ACTIVITY: 

The applicant states his life has been messed up every since he got out.  He has been incarcerated for four years now.  

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 he was supposed to have a fair trial.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he did not receive a fair trial.    The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  In addition, 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.  

5.  The applicant contends he asked to be moved from his unit because he was treated different.  AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

6.  The applicant contends his mother had surgery and he was not allowed to visit her.  He had surgery on his mouth and the first sergeant tried to make him answer the phone all day.  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.  

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:  8 January 2014     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)		AR20130008044



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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