IN THE CASE OF:	Mr. 

      BOARD DATE:	9 April 2014

      CASE NUMBER:	AR20130013791
___________________________________________________________________________

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 fully honorable.

2.  The applicant states, in effect, he thinks his discharge should be upgraded due to PTSD and other mental health disorders that made his thought process bad.  He loves the military and gave it his all - the Army was everything to him and wishes for another chance.  He was an excellent Soldier, even while deployed with stress, and not knowing if he would make it home.  He was promoted to E-5 and reenlisted during his deployment so he could keep fighting for his country.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 July 2013
	b.	Discharge Received:	Bad Conduct
	c.	Date of Discharge:	24 March 2010
	d.	Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3, JJD 
			RE-4
	e.	Unit of assignment:	HHC, 61st Ordnance Bde, Aberdeen Proving 
			Ground, MD
	f.	Current Enlistment Date/Term:	21 September 2007, 3 years
	g.	Current Enlistment Service:	2 years, 2 months, 9 days
	h.	Total Service:	7 years, 1 month, 27 days
	i.	Time Lost:	119 days
	j.	Previous Discharges:	RA (021002-050621) / HD
			RA (050622-070920) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	92Y10, Unit Supply Specialist
	m.	GT Score:	93
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (050117-060104), (030306-030712)
	q.	Decorations/Awards:	ARCOM-2; AGCM; NDSM; ICM-CS; GWOTEM 
			GWOTSM; NPDR; ASR; OSR; CAB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	None
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 2 October 2002, and reenlisted twice thereafter.  The latter reenlistment was on 21 September 2007, for a period of 3 years.  He was 21 years old at the time of entry and a high school graduate.  He served in Iraq twice.  He earned two ARCOM awards.  He completed 7 years, 1 month, and 11 days of active duty service, which includes 197 days of excess leave creditable for all purpose, except for pay and allowances.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 13 May 2009, the applicant was found guilty by a special court-martial of one specification for making false official statements (081203) and four specifications for stealing property or money in the amount of approximately $170 and over $500 (080111-080327 and 081202), respectively.  He was sentenced to be discharged with a bad conduct discharge, confinement for 8 months, and reduction to E-1.  

2.  On 20 August 2009, only so much of the sentence for reduction to the grade of E-1, confinement for 5 months, and a bad conduct discharge was approved, and that except for the part of the sentence extending to a bad conduct discharge, would be executed.  The approved action further instructed that the automatic forfeiture of pay was deferred effective 28 May 2009 until date of the action or 20 August 2009, and the automatic forfeiture of pay and allowances was waived effective 20 August 2009, for 6 months or until 16 February 2010, with the direction that such monies be paid to the applicant’s spouse.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 21 October 2009, The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  

3.  On 29 January 2010, the sentence of bad conduct discharge was ordered to be executed.

4.  The applicant was separated from the Army on 24 March 2010, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.  The record also shows 197 days of excess leave (from 9 September 2009 to 24 March 2010).

5.  The applicant’s service record shows he had 119 days of time lost for serving his confinement (090513-090908).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DA Form 4430, DA Report of Result of Trial, reports that on 13 May 2009, the applicant was found guilty by a special court-martial empowered to adjudge a bad conduct discharge of the following charges and its specification(s):  

	a.	Charge I, violation of Article 107, UCMJ, making false official statement and
	b.	Charge II, violations of Article 121, UCMJ, two specifications of wrongful appropriation, and two specifications of larceny.
The sentence consisted of reduction to E-1, confinement for eight (8) months, and a bad conduct discharge.  The sentence adjudged on 13 May 2009, further indicated the effective date of any forfeiture or reduction in grade was 27 May 2009.

2.  The United States Army Court of Criminal Appeals decision in the case of US versus the applicant, dated 21 October 2009, indicates the findings of guilty and the sentence were affirmed.  

3.  On 20 August 2009, Special Court-Martial Order Number 9 announced the approved sentence and the findings of guilty as described in paragraph 1 above.  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 the bad conduct charge, would be executed.  The automatic forfeiture was deferred effective 28 May 2009 until 20 August 2009, and the automatic forfeiture of pay and allowances was waived effective 20 August 2009 for six months, with direction that the monies be paid to the applicant’s spouse.

4.  Special Court-Martial Order Number 10, dated 29 January 2010, announced the aforementioned approved sentence was affirmed, and ordered the bad conduct discharge executed.

5.  Confinement order, dated 13 May 2009, indicates the applicant was confined on 13 May 2009, which was followed by a DA Form 4187, Personnel Action, dated 10 September 2009, that indicates the applicant’s confinement status changed to PDY for being released from confinement upon completion of sentence on 9 September 2009.

6.  Article 15, dated 22 October 2007, for wrongfully having sexual intercourse with a woman, not his wife (070101-070131).  The punishment consisted of reduction to the grade of E-4 and 30 days of extra duty, (FG). 

7.  Two NCOERs covering the following periods:

	a.	1 November 2006 to 22 October 2007, a change of rater report, indicates the applicant was rated as “Marginal” and received 4/4 from the senior rater.
	b.	29 May 2006 to 31 October 2006, a change of rater report, indicates the applicant was rated as “Fully Capable” and received 2/2 from the senior rater.

8.  DA Form 1059, dated 9 March 2001, indicates the applicant achieved the WLC course standards, and was issued a diploma, dated 8 March 2001.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided Court-Martial Order No. 10, dated 29 January 2010; character reference statement, dated 6 June 2013; Initial PTSD Disability Benefits Questionaire, dated 26 June 2013

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 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 his discharge should be upgraded due to PTSD and other mental health disorders that made his thought process bad, and offered his initial PTSD Disability Benefits Questionnaire as evidence.  However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted that were based on a special court-martial conviction.  Further, there are many Soldiers with the same condition that completed their service successfully.

5.  The applicant contends that he had good service which included being promoted to E-5 and reenlisting during his deployment.  The applicant’s service accomplishments and the quality of his service prior to the serious incidents that led to his court-martial conviction were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant granting clemency.

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:  Records Review       Date:  9 April 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)		AR20130013791



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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