IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 January 2014

      CASE NUMBER:  	AR20130010336
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 and a change to his narrative reason for discharge.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to enlist in the Navy.  He believes his discharge was unjust because it was his first and only adult mistake in life.  The applicant contends he made a grave mistake about 10 years ago while serving in the Army.  He got involved with the wrong crowd of people and his quality of decisions eroded until he was only making bad decisions.  He ended up going to jail and serving 7 years probation, which he got early termination for good behavior.  He believes everyone makes mistakes in life; he is now a better person and wants to earn his respect back from his family by being able to care for his wife and daughter.  He would like a second chance to prove that he has learned from the previous mistakes.  He is just requesting a second chance to serve his country.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			31 May 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				7 September 2005
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3 								JJD, RE-4
e. Unit of assignment:				B Co, 1st Bn, 5th IN Regiment, Fort Lewis, WA
f. Current Enlistment Date/Term:		29 January 2002, 5 years
g. Current Enlistment Service:		1 year, 10 months, 26 days
h. Total Service:				1 year, 10 months, 26 days
i. Time Lost:					447 days  
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					114
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No


SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 29 January 2002, for a period of 5 years.  He was 19 years old at the time of entry and a high school graduate.  His service record documents no acts of valor or significant achievements.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 11 August 2004, the applicant was found guilty by a special court-martial for being absent from his unit until his apprehension (030310-030419), wrongful use of marijuana between (020616 and 020716), and wrongful use of cocaine between (030212 and 030218).  He was sentenced to be discharged with a Bad Conduct Discharge, forfeiture of $795.00 pay per month for twelve (12) months, and confinement for seven (7) months.  

2.  On 8 December 2004, only so much of the sentence as provides for forfeiture of $795.00 pay per month for twelve (12) months; confinement for one hundred and eighty (180) days; and a bad conduct discharge was approved; and except for the part extending to the bad conduct discharge was ordered to be executed.  Furthermore, the applicant was to be credited with fifty-three (53) days of confinement credit against the approved sentence to confinement and with sixty (60) days of forfeiture credit against the approved sentence to forfeiture.

3.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review; The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

4.  On 11 March 2005, the sentence was ordered to be executed.

5.  The applicant was separated from the Army on 7 September 2005, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

6.  The applicant’s service record shows he had 447 days of time lost; 34 days for being AWOL 10 March 2003 until apprehension on 12 April 2003; 320 days for being confined by civil authority, 13 April 2003 until 26 February 2004, and 93 days, 11 August 2004 until            11 November 2004, as a result of his military confinement.  The applicant's DD Form 214 also indicates excess leave totaling 300 days 12 November 2004 until 7 September 2005.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order 44, dated 8 December 2004, which shows the applicant was found guilty by of being absent from his unit until his apprehension (030310-030419), wrongful use of marijuana between (020616 and 020716), and wrongful use of cocaine between (030212 and 030218).  Sentence was adjudged on 11 August 2004, and the applicant was sentenced to a Bad Conduct Discharge, forfeiture of $795.00 pay per month for twelve (12) months, and confinement for seven (7) months.  Only so much of the sentence as provides for forfeiture of $795.00 pay per month for twelve (12) months; confinement for one hundred and eighty (180) days; and a bad conduct discharge was approved; and except for the part extending to the bad conduct discharge was ordered to be executed.  Furthermore, the applicant was to be credited with fifty-three (53) days of confinement credit against the approved sentence to confinement and with sixty (60) days of forfeiture credit against the approved sentence to forfeiture.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, a copy of his travel order, and a copy of the Department of the Army Report of Result of Trial.

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.

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 unjustly discharge because his discharge was based on one incident.  Even though the applicant claims his discharge was based on an isolated incident, the evidence of record shows the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct, expected of Soldiers in the Army.  Having examined all the circumstances, the applicant’s numerous incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and were prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a general, under honorable conditions discharge.

5.  The applicant also has expressed his desire for an upgrade of his discharge for the purpose of being able to enlist in the Navy.  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.

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

7.  In view of the foregoing, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny clemency.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance	  Date: 13 January 2014   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  Yes [redacted]

Witnesses/Observers: Yes, Wife and Daughter

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents or issues for Board consideration.

In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.






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)		AR20130010336



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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