IN THE CASE OF:	

      BOARD DATE:	9 March 2015

      CASE NUMBER:	AR20140021407
___________________________________________________________________________

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 notwithstanding the Discussion and Recommendation which follows, the Board determined that clemency is warranted based on the applicant’s quality of his service to include his combat service, hearing his testimony, and the circumstances surrounding his discharge.  Accordingly, the Board voted to grant full relief by upgrading the applicant’s characterization of service to honorable.  A change in the reason for discharge is not authorized under Federal statute.




      
      
      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 a bad conduct to general, under honorable conditions.

2.  The applicant states, in pertinent part and in effect, his discharge and court-martial were unjust and unconstitutional.  His chain of command mistreated him.  He should have been medically discharged.  He adds that another issue with his discharge is the missing information on his DD Form 214.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	9 December 2014
	b.	Discharge Received:	Bad Conduct
	c.	Date of Discharge:	24 August 2007
	d.	Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4
	e.	Unit of assignment:	HHC, 3rd Bn, 69th Armor Regiment, 3rd ID, Fort 
			Stewart, GA
	f.	Current Enlistment Date/Term:	14 February 2002, 4 years
	g.	Current Enlistment Service:	4 years, 4 months, 26 days
	h.	Total Service:	4 years, 4 months, 26 days
	i.	Time Lost:	414 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	68W10, Health Care Specialist
	m.	GT Score:	118
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	(NIF)
	q.	Decorations/Awards:	NDSM; ASR; USA/USAF PUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 14 February 2002, for a period of 4 years.  His record indicates his enlistment was extended due to being AWOL.  He was 23 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 68W10, Health Care Specialist.  His record indicates he served in combat (time period NIF).  His record documents no other acts of valor or significant achievement.  He completed 4 years, 4 months, and 26 days of active duty and creditable federal service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 17 May 2006, the applicant was found guilty by a special court-martial of the following two specifications of violating Article 86, UCMJ:  

	a.	being AWOL from 7 December 2004 through 23 December 2004, and 
	b.	being AWOL from 17 March 2005 through 31 January 2006.

2.  The sentence consisted of confinement for three months and to be discharged from the service with a bad conduct discharge.

3.  On 12 July 2006, the applicant was released from confinement (after being credited with serving 20 days pretrial confinement (060427-060516).  He was placed on excess leave for 409 days (060712-070824).

4.  On 14 July 2004, the sentence was approved, except for that part extending to a bad conduct discharge.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 28 November 2006, The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  

5.  On 12 April 2007, the sentence of a bad conduct discharge was ordered to be executed.

6.  The applicant was separated from the Army on 24 August 2007, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

7.  The applicant’s service record shows he had 414 days of time lost for being AWOL on two separate occasions (7 December 2004, until he returned to his unit on 22 December 2004 and 17 March 2005, until his apprehension on 30 January 2006) and from 27 April 2006 through 11 July 2006, as a result of military confinement.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Special Court-Martial Order Number 68, dated 12 April 2007, which announced the affirmation of the court-martial sentence and ordered the bad conduct discharge to be executed.

2.  Special Court-Martial Order Number 10, dated 14 July 2006, which shows the applicant being found guilty of the charge described at the preceding paragraph 1, including the adjudged sentence at the preceding paragraph 2 at the separation facts and circumstances portion above.   

3.  A summarized Article 15 dated 14 January 2004, for failure to repair on 7 October 2003 and 18 December 2003, with punishment being 14 days extra duty.

4.  A company grade Article 15 dated 12 August 2004, for failure to repair on 26 February 2004 and 14 April 2004, with punishment being a reduction to PV2, forfeiture of $334 and 14 days extra duty.

5.  A field grade Article 15 dated 19 October 2004, for AWOL from 7 May 2004 through 15 July 2004, with punishment being a reduction to PVT, forfeiture of $596 for two months, 45 days extra duty and 45 days restriction.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two self-authored statements; report of mental status evaluation, dated 12 May 2006; Stipulation of Fact, dated 17 may 2006; six counseling statements, dated between 17 April 2004 and 7 February 2006; Recommendation for Award for ARCOM w/V Device, dated 10 April 2003; recommendation of the SJA in the Special Court-Martial case of the applicant; battalion and brigade commanders’ Chapter 10 recommendations, dated 12 April 2006 and 4 May 2006; and Special Court-Martial Order 10, dated 14 July 2006.  Additional evidence: character reference e-mail correspondence, dated 17 February 2015, and an additional self-authored statement.  

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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:  

	a.	Overall length and quality of his service.  The applicant served for over three years of a four-year enlistment.
	b.	He served a combat tour in Iraq (dates are NIF).
	c.	He earned an ARCOM with V Device (NIF but according to his submitted evidence).
	d.	A Report of Mental Status Evaluation reflecting that the applicant appeared to be experiencing an adjustment disorder with disturbance of conduct (e.g., return from combat and numerous AWOLs with alcohol abuse), an indication of a mental health disorder that existed at the time of his discharge.

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4.  The applicant contends his DD Form 214 is missing some information.  However, the applicant’s requested change to the DD Form 214 does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.

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

6.  In view of the foregoing, it appears that the characterization of the discharge is now inequitable.  Therefore, it is recommended the Board grant full relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, a change to the reason for the discharge is not authorized under Federal statute.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance        Date: 9 March 2015       Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  None

Witnesses/Observers:  Brother

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional document:

Email from SSG G.	

2.  The applicant presented no additional contentions.

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

Board Vote:
Character Change:   5		No Change:   0
Reason Change:	 NA		No Change:   NA
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			Yes
Change Characterization to:		Honorable
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
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)		AR20140021407

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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