IN THE CASE OF:	Mr.

      BOARD DATE:	4 April 2014

      CASE NUMBER:	AR20130013800
___________________________________________________________________________

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 fully honorable.  

2.  The applicant states, in effect, the accusations and illegal paper work brought upon him in such a lugubriousness fashion is the reason why he wants his case reviewed or appealed.  He believes there was discrimination because he was not the same color as them (perhaps referring to his chain of command) and they did not like to give opportunities to anyone.  In a separate lengthy self-authored statement, in pertinent part and in effect, he states he served in Korea on his first enlistment and at his next assignment, he deployed to Iraq in February 2003.  On his second reenlistment, he served in Germany.  He did an outstanding job during his Soldier of the month board.  In addition to listing his achievements that are reflected on his DD Form 214, he detailed his disagreement with the circumstances and events surrounding the allegations by his chain of command that led to his involuntary discharge.  He concludes he finally completed his divorce papers in August 2008.  He does not deserve his discharge.  He cannot find a good job.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 July 2013
	b.	Discharge Received:	Bad Conduct
	c.	Date of Discharge:	13 January 2012
	d.	Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3, JJD 
			RE-4
	e.	Unit of assignment:	HHC, USAG, Heidelberg, Germany
	f.	Current Enlistment Date/Term:	22 May 2006, 4 years
	g.	Current Enlistment Service:	5 years, 2 months, 26 days
	h.	Total Service:	11 years, 1 month, 20 days
	i.	Time Lost:	149 days
	j.	Previous Discharges:	RA (000628-030726) / HD
			RA (030827-060521) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	42A10, Human Resources Specialist
	m.	GT Score:	90
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea, SWA, Germany
	p.	Combat Service:	Iraq (030222-030609)
	q.	Decorations/Awards:	ARCOM; AAM-5; AGCM-2; NDSM; GWOTEM 
			GWOTSM; KDSM; ASR; OSR-2
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 28 June 2000, and reenlisted twice thereafter.  The latter reenlistment was on 22 May 2006, for a period of 4 years.  He was 27 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 42A10, Human Resources Specialist.  He served in Korea, Iraq, and Germany.  He earned an ARCOM and five AAM awards.  He completed 11 years, 1 month, and 20 days of creditable active federal service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 15 August 2007, the applicant pleaded guilty to all charges and was found guilty by a special court-martial, empowered to adjudge a bad conduct discharge to the following three charges:

	b.	Charge I, violation of Article 121, UCMJ, for stealing BAH, a value of about $22,000 (041016-070304);
	b.	Charge II, violation of Article 107, making false official statement (070305); and
	c.	Charge III, violation of Article 134, altering and presenting the altered court document to his supervisor, SSG J.
He was sentenced to be discharged with a bad conduct discharge, confinement for 6 months, and reduction to E-1.  

2.  On 6 December 2007, only so much of the sentence for reduction to the grade of E-1, confinement for 6 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 record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  On 1 August 2009, Special Court-Martial Order Number 159 announced that The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence, and ordered the bad conduct discharge to be executed.  

3.  The applicant was separated from the Army on 13 January 2012, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.  The record also shows 1,460 days of excess leave (from 15 January 2008 to 13 January 2012).

4.  The applicant’s service record shows he had 149 days of time lost for serving his confinement (070815-080110).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  On 6 December 2007, Special Court-Martial Order Number 6 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 6 months and a bad conduct discharge was approved and, except for the bad conduct charge, would be executed.  

2.  Special Court-Martial Order Number 159, dated 1 August 2008, announced the affirmation of the approved sentence, and ordered the bad conduct discharge be executed.

3.  DA Form 4187, Personnel Action, dated 15 January 2008, indicates the applicant’s PDY status changed to confinement, effective 15 August 2007, followed by DA Form 4187, Personnel Action, dated 15 January 2008, which indicates the applicant’s confinement status changed to PDY, effective 11 January 2008, for being released from confinement upon completion of sentence.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided approximately 38 attachments, consisting of: SPCM Order No. 159, dated 1 August 2008; civil marriage registration, dated 24 June 2002 (between applicant and wife (S.L.S.V); counseling statement, dated 2 March 2007; DA Form 5960, authorization to Start, Stop, or Change BAQ and/or VHA, dated 20 June 2002; DA 31, Request and Authority for Leave, dated 29 May 2002; ATTRS training cancellation, dated 11 June 2007; US Dept. of Justice, Notice of Action (Receipt Notice), dated 16 October 2002; US Dept. of Homeland Security (request for additional evidence), dated 9 May 2005; Direct Deposit Sign-Up Form, dated 22 June 2000, with LES page 3, showing allotment; December 2002, February 2008, JUMPS LES; January 2003 LES; April and June LESs; memorandum, dated 26 February 2007; OHA, El Salvador location allowance information, dated 1 March 2005; US Dept of Justice, approve naturalization with certificate, dated 21 March 2000; DA Form 31, dated 14 January 2008; two counseling statements, dated 11 March and 13 April 2007; FLAG actions management report, dated 15 March 2007; Request to Attend-On-Duty (Managed Programs) Training-Army Continuing Education System, dated 16 March 2007;  DA Form 2171, Request for Tuition Assistance–Army Continuing Education System, dated 24 October 2005; ERB, dated 13 March 2007; recommendation for February Soldier of Month Board, dated 8 January 2007; Statement from lawyer, Los Angeles, CA, dated 19 April 2008; Mannheim drivers’ testing orientation certificate, dated 13 May 2007; USAEUR drivers testing information sheet, dated 12 March 2007; two PCS orders, dated 9 March 2007 and 7 January 2008; excess leave letter, dated 14 January 2008; certificate of class completion, dated 17 October 2007; DA Form 4151, Evidence/Property Custody document, dated 15 August 2007; transition orders, dated 5 January 2012; birth registration of S.L.S.V; battalion and wartime status, and Soldier status election statements, dated 7, 6, and 2 February 2007; EDAS assignment reports, dated 2 February 2007; divorce decree, dated 8 August 2008; sworn statement, dated 21 March 2007 by MSG H; counseling statement, dated 8 January 2007; travel orders, dated 14 January 2008 with SATO itinerary, dated 8 January 2008; and enlistment contract, dated 22 May 2006.  

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, and 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 applicant’s numerous contentions, indicating that his discharge was unjust because the accusations and illegal paper work brought upon him was in such a lugubriousness fashion and that he was discriminated against because he was not of the same color, and detailed his disagreements with the circumstances and events surrounding the allegations by his chain of command that led to his involuntary discharge.  However, because relevant and material facts stated in the applicant’s court-martial specifications are presumed by the Board 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.  There is also 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 sufficient evidence to support the contention that he may have been unjustly discriminated.  In fact, the court-martial conviction stands as adjudged or modified by appeal through the judicial process.  This Board is empowered to change the discharge only if clemency is determined to be appropriate, and that clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  Accordingly, 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 reiteration, with respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency, which is an act of leniency that reduces the severity of the punishment imposed.  

4.  The applicant contends that he had good service which included outstanding performance at the Soldier of the month board, earning the numerous achievements listed, and serving in Korea, Iraq, and Germany.  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 an upgrade to the characterization of discharge as shown by the bad conduct discharge sentence he received by a special court-martial empowered to adjudge a bad conduct discharge.

5.  The applicant contends that with his involuntary discharge, he is unable to obtain better employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

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:  4 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:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
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)		AR20130013800

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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