IN THE CASE OF:	Mr. 

      BOARD DATE:	5 March 2014

      CASE NUMBER:	AR20130010978
___________________________________________________________________________

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

2.  The applicant states, in effect, he does not feel he had a fair trial because in the middle of the trial, judges were switched.  He adds he has no reasons for going AWOL.  This was his first offense and everybody messes up once. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	10 June 2013
	b.	Discharge Received:	Bad Conduct
	c.	Date of Discharge:	22 October 2010
	d.	Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3, JJD, 
			RE-4
	e.	Unit of assignment:	HHC (Rear) (Detachment), 10th Combat Aviation 
			Brigade (Rear) (Provisional), 10th Mountain Division 
			(Light Infantry), Fort Drum, NY
	f.	Current Enlistment Date/Term:	9 June 2005, 4 years
	g.	Current Enlistment Service:	1 year, 5 months, 27 days
	h.	Total Service:	1 year, 5 months, 27 days
	i.	Time Lost:	1,417
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	89B10, Ammunition Specialist
	m.	GT Score:	98
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	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 record shows the applicant enlisted in the Regular Army on 9 June 2005, for a period of 4 years.  He was 17 years old at the time and was a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 89B10, Ammunition Specialist.  His record documents no acts of valor or significant achievement.  



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 3 September 2009, the applicant was found guilty by a special court-martial, empowered to adjudge a bad conduct discharge, of being AWOL (051128-080601) and wrongful using marijuana (090516-090614).  

2.  He was sentenced to be discharged with a Bad Conduct Discharge, reduction to E-1, forfeiture of $500 pay per month for 5 months, and confinement for 5 months.  

3.  On 7 January 2010, the applicant was released from confinement.  On 14 January 2010, the applicant was placed on involuntary excess leave.  

4.  On 10 February 2010, only so much of the sentence as provides for reduction to E-1, confinement for 5 months, and a bad conduct discharge was approved, and except for that part of the sentence extending to a bad conduct discharge was ordered executed.  Further, the adjudged and automatic forfeitures that were deferred on 14 January 2010, was terminated, and the automatic forfeiture of two-thirds pay per month for 5 months was waived for a period of six months with the direction that the funds be paid to the benefit of the applicant’s dependent son. The applicant was credited with 3 days of confinement against his sentence to confinement. 

5.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 27 August 2010, the sentence having been affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed.  

6.  The applicant was separated from the Army on 22 October 2010, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.  The record also shows 282 days of excess leave (100114-101022).

7.  The applicant’s service record further shows a total of 1,417 days of time lost: 1,290 days due to being AWOL (051128-090609) (mode of return is unknown), and 127 days due to military confinement (090903-100107). 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order Number 14, dated 10 February 2010, which published the findings, adjudged the sentence, and approved the sentence of the applicant trial by a special court-martial, empowered to adjudge a bad conduct discharge. 

2.  Special Court-Martial Order Number 110, dated 27 August 2010, which announced the sentence being affirmed and ordered the bad conduct discharge to be executed.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided Special Court-Martial Order Number 110, dated 27 August 2010.

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.  The ADRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, court-martial, other.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4.

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 document 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 the discharge was unjust because he did not have a fair trial; wherein, judges were switched in the middle of his trial by court-martial.  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 may have been unjustly discriminated.  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.  Therefore, it is appropriate to restate that 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, and court-martial convictions stand as adjudged or modified by appeal through the judicial process.  

5.  The applicant contends the incident that caused his discharge was the only one in his entire Army career.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  Accordingly, 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:  Records Review       Date:  5 March 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)		AR20130010978

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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