IN THE CASE OF: BOARD DATE: 5 June 2015 CASE NUMBER: AR20140009666 ___________________________________________________________________________ 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 a bad conduct discharge to general, under honorable conditions. 2. The applicant states, in effect, his discharge was inequitable because it was based on one isolated incident in his 122 months of service with no other adverse action. He is responsible for his actions. His military career did not have to suffer due to one isolated incident. He served his country and unit with the utmost respect and dedication. He served with distinction amongst his peers. He would proudly serve again if given the opportunity. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 2 June 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 19 September 2008 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: Co B, 1st Bn, 46th Infantry, 1st Armor Training Bde, Fort Knox, KY f. Current Enlistment Date/Term: 9 February 2005, 5 years g. Current Enlistment Service: 3 years, 7 months, 11 days h. Total Service: 13 years, 0 months, 1 day i. Time Lost: None j. Previous Discharges: RA (950919-980317) / HD RA (980318-000913) / HD RA (000914-021229) / HD RA (021230-050208) / HD k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 19K18, M1 Armor Crewman m. GT Score: 106 n. Education: HS Graduate o. Overseas Service: Korea, Germany p. Combat Service: None q. Decorations/Awards: ARCOM-2; AAM-7; AGCM-2; NDSM; GWOTSM; KDSM; NPDR-2; ASR; OSR-2 r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 19 September 1995, and reenlisted four times thereafter. The latter reenlistment was on 9 February 2005, for a period of 5 years. He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 19K18, M1 Armor Crewman. He served in Korea and Germany. He earned two ARCOMs and 7 AAMs. He completed 13 years and 1 day of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 14 March 2007, the applicant was found guilty by a special court-martial empowered to adjudge a bad conduct discharge of the following charges: a. Charge I, violation of Article 128, UCMJ, for two specifications of assaulting Ms. PH (070114); b. Charge II, violation of Article 134, UCMJ, for negligently discharging a firearm (061002); and c. Charge III, violation of Article 107, UCMJ, for making a false official statement (070117). He was sentenced to be discharged with a Bad Conduct Discharge and a reduction to E-1. 2. On 14 June 2007, 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 10 October 2007, The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. 3. On 22 May 2008, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 19 September 2008, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. 5. The applicant’s record of service does not show any record of unauthorized absences or time lost. However, the record shows 501 days of excess leave (from 8 May 2007 to 19 September 2008). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order adjudged on 14 March 2007, shows the applicant was found guilty as described in paragraph 1 above. His punishment consisted of a Bad Conduct Discharge and a reduction to E-1. 2. United States Army Court of Criminal Appeals decision, dated 10 October 2007. 3. Special Court-Martial Order Number 86, dated 22 May 2008, ordered the Bad Conduct Discharge to be executed. 4. Three NCOERs rendered during the period under current review, as follows: a. A “Change of Rater” report covering the period of May 2006 to July 2006. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. b. An “Annual” report covering the period of May 2005 to April 2006. The applicant was rated as “Among the Best” and received 1/1 from the senior rater. c. An “Annual” report covering the period of May 2004 to April 2005. The applicant was rated as “Fully Capable” and received 1/2 from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement; DD Form 214 for service under current review; SPCM Order No. 86, dated 22 May 2008; NCO Creed; and four character reference letters. POST-SERVICE ACTIVITY: The applicant states, in effect, he is a student advocate and an after school site coordinator for a school district. 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. 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 his discharge was based on one isolated incident in his 122 months of service with no other adverse action. Even though the applicant claims it was a single incident, the evidence of record (i.e., special court-martial) shows that the applicant committed many discrediting offenses, which 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. However, the applicant's serious incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 5. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of court-martial charges were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant clemency. 6. The applicant contends he would proudly serve again if give the opportunity to rejoin the Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE Code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 7. The applicant’s third party statements provided with the application are acknowledged and speak highly of the applicant’s performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 8. In view of the foregoing, 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 June 2015 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: No Change Grade Restoration to: NA Other: NA Legend: 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 FG - Field Grade IADT – Initial Active Duty Training RE - Reentry Honorable Conditions ADRB Case Report and Directive (cont) AR20140009666 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1