IN THE CASE OF: Ms. BOARD DATE: 5 December 2014 CASE NUMBER: AR20140014956 ___________________________________________________________________________ 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 determined that clemency is warranted based on the overall length and quality of the applicant’s service, and as a result it is inequitable. Accordingly, the Board voted to grant clemency by upgrading the applicant’s characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. This action entails restoration of grade to E-6/SSG. 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 an upgrade of her bad conduct discharge to honorable. 2. The applicant states, in effect, her bad conduct discharge was outrageously harsh considering that she has had an exceptionally blemish free 16 year military career. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 13 August 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 27 March 2009 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: A Company, 1st Battalion, 210th Aviation Regiment, Fort Rucker, AL f. Current Enlistment Date/Term: 7 June 2005/NIF g. Current Enlistment Service: 3 years, 9 months, 21 days h. Total Service: 20 years, 28 days i. Time Lost: None j. Previous Discharges: DEP, 811105-820126, N/A RA, 820127-850902, HD RA, 850903-880524, HD RA, 880525-890816, HD RA, 890817-920629, HD RA, 920630-920701, HD RA, 920702-950630, NA ARNG, 021024-030309, NA ARNG, 030310-040228, HD ARNG, 040301-051202, UNC USHRCG, 0512-03-050606, NA (concurrent service) k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 44C10, Financial Management Technician m. GT Score: 112 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ARCOM, AGCM-3, NDSM, GWOTSM, ASR, OSR-2, AFRMM w/M Device r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army on 27 January 1982, for 6 years. She was 21 years old at the time and a high school graduate. She reenlisted in the Army National Guard on 24 October 2002, for a period of 3 years. She earned an ARCOM. When her discharge proceedings were initiated, she was serving at Fort Rucker, Alabama. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 3 August 2005, the applicant was found guilty by a special court-martial of wrongfully using marijuana (041204). She was sentenced to be discharged with a Bad Conduct Discharge, forfeiture of $823.00 pay per month for three months, and a reduction to E-1. 2. On 3 February 2006, 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 17 February 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 3 February 2006, the sentence was ordered to be executed. 4. Supplement to Petition for Grant of Review (10 pages), date unknown, states the following: a. On 22 September 2006, the Army Court of Criminal Appeals summarily affirmed the findings of guilty and the sentence. In addition, Judge S filed a dissenting opinion (page 8) that reads “[u]nder these circumstances, it is difficult to escape the conclusion that the charges of which the members acquitted appellant affected the harsh sentence she received.” b. On 12 October 2006, the Army Court of Criminal Appeals ordered appellant to file said supplement to her petition for a grant of review. An extension of time was granted until 13 December 2006. c. On 13 November 2006, by order of the Army Court of Criminal Appeals, the undersigned military counsel hereby file on behalf of appellant under Rule 25 a supplementary brief to appellant’s petition for grant of review. 5. Special Court-Martial Order Number 166, dated 19 November 2008, finally affirmed the sentence to reduction to the grade of Private E1, forfeiture of $823.00 pay per month for 3 months, and a Bad-Conduct Discharge, adjudged on 3 August 2005, as promulgated in Special Court-Martial Order Number 1, Headquarters, United States Army Aviation Center and Fort Rucker, Fort Rucker, AL 36362, dated 3 February 2006. Article 71(c) having been complied with, the Bad-Conduct Discharge will be executed. 6. The applicant was separated from the Army on 27 March 2009, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. 7. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Special Court-Martial Order 1, dated 3 February 2006, adjudged on 3 August 2005, shows the applicant, was found guilty as described in paragraph 1 above. Her punishment consisted of a Bad Conduct Discharge, reduction to the grade of E-1, and a forfeiture of pay in the amount of $823.00 for three months. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 293, dated 11 August 2014, and a DD Form 214 covering the period of service under review. 2. Self-authored statement, dated 8 August 2014, outlining the details leading to the wrongful arrest, the conscious decision to smoke marijuana as a coping mechanism, and her ultimate discharge. 3. Character statement, dated 11 August 2014, written by applicant’s spouse detailing the emotional suffering and shift that occurred during and after the court martial. The statement also alleges the lack of support from the chain of command during the applicant’s court martial. 4. Memorandum, dated 20 January 2006, written by MAJ R, senior defense counsel, states the applicant did not receive a fair and just result out of the court-martial process. He also states that he believes that the applicant’s “mixed plea” may have been the basis as to why the applicant received such harsh punishment. 5. Two character letters, dated 26 January 2006, from the Information Operations Officer and the Interim Resource Manager. Both statements depict the applicant as a mature, respectful individual that was constantly called upon for her mentorship from junior Soldiers. In addition, the applicant’s attitude was always positive and mission focused. Neither one discount the fact the applicant wrongfully used marijuana. 6. Court of Appeals for the Armed Forces (13 pages), unknown date, to determine “whether the Army Court of Criminal Appeals erred when it affirmed the applicant’s disproportionate and inappropriately severe sentence to a bad-conduct discharge considering the mitigation evidence presented a trial, the absence of aggravation evidence, and the comparative lack of severity of her misconduct.” On page 10 of 13, it states “their (the jury) harsh sentence belies that the panel disregarded the military judge’s instruction and improperly considered and factored appellant’s larceny charges in sentencing appellant. In turn, the Army Court erred in affirming their sentence to a bad-conduct discharge that was plausibly based on an inappropriate sentencing consideration.” POST-SERVICE ACTIVITY: None was 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 her discharge was carefully considered. 2. After examining the applicant’s record of service, her military records, the documents and the 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 her service. The applicant served for over 20 years of service. b. She earned an ARCOM and three AGCMs. 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 the event that caused her discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 5. The records show the proper discharge and separation authority procedures were followed in this case. 6. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant clemency in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. 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, the Board determined that clemency is warranted based on the overall length and quality of the applicant’s service, and as a result it is inequitable. Accordingly, the Board voted to grant clemency by upgrading the applicant’s characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. This action entails restoration of grade to E-6/SSG. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 5 December 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA 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: General, Under Honorable conditions Change Reason to: NA Change Authority for Separation: NA Change RE Code to: NA Grade Restoration to: E-6/SSG 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) AR20140014956 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1