IN THE CASE OF: BOARD DATE: 12 September 2014 CASE NUMBER: AR20140008438 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to under other than honorable conditions. 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 honorable. 2. The applicant states, in effect, that he was cleared of all his charges following his court martial. The applicant contends that his rank was restored upon release from confinement. The applicant states that he would like all his benefits and an honorable discharge, both of which he feels he deserves based on his service in Iraq. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 9 May 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 31 August 2006 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: Company F, 4th Support Battalion, 1st Battalion, 66th Armor Regiment, 1st Brigade, 4th Infantry Division (Mechanized), Fort Hood, TX f. Current Enlistment Date/Term: 28 May 2002/3 years g. Current Enlistment Service: 3 years, 8 months, 19 days h. Total Service: 4 years, 3 months, 3 days i. Time Lost: 198 days j. Previous Discharges: DEP, 020424-020527, NA k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 63H10, Tracked Vehicle Mechanic m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: None p. Combat Service: Iraq q. Decorations/Awards: ARCOM, NDSM, ASR r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 28 May 2002, for a period of 3 years. He was 20 years old at the time of entry and a high school graduate. He served in Iraq, earned an ARCOM, and completed 3 years, 8 months, and 19 days of active duty service. His record documents no acts of valor or significant achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 23 May 2005, the applicant was found guilty by a special court-martial of stealing Basic Allowance for Housing entitlements; military property of a value of about $17400.00 the property of the United States Government at or near Fort Hood, Texas between on or about 1 June 2004 and on or about 15 September 2004. He was sentenced to a reduction to the grade of Private (E-1), fined $9,864, confinement for nine (9) months, and to be separated from the service with a Bad Conduct Discharge. 2. On 20 September 2005, only so much of the sentence was approved. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 8 December 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 7 December 2005, the applicant was released from confinement. He was retained in the service 264 days for the convenience of the government per AR 635-200. He was placed on excess leave for 268 days (051207-060831). 4. The applicant was separated from the Army on 31 August 2006, with a bad conduct discharge, an SPD code of JJD, and an RE code of 4. 5. The applicant’s service record shows he had 198 days of lost time (050523-051207) as a result of his military confinement. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Special Court-Martial Order Number 17 adjudged on 23 May 2005, which shows the applicant, was found guilty as described in paragraph 1 above. His punishment consisted of reduction to the grade of Private (E-1), fined $9864, confined for nine (9) months, and to be separated from the service with a Bad Conduct Discharge. EVIDENCE SUBMITTED BY THE APPLICANT: None were provided with the application. 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, 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 that the charges against him were dismissed before he left the Army. 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 was 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. 5. The applicant contends that his rank was restored upon his release from confinement and requests that his rank be restored. The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank. The Board may only change the characterization or reason for discharge. If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization. 6. The applicant contends his discharge should be upgraded to honorable and that he would still like all of his benefits based on his service overseas in Iraq. However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The applicant’s record is void of any specific facts pertaining to any overseas service, most notably combat service in Iraq. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 7. The records show the proper discharge and separation authority procedures were followed in this case 8. In view of the foregoing, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny clemency. BOARD DETERMINATION AND DIRECTED ACTION After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to under other than honorable conditions. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 12 September 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None Witnesses/Observers: No Board Vote: Character Change: 3 No Change: 2 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: Under Other than Honorable Conditions 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) AR20140008438 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1