IN THE CASE OF: Mr. BOARD DATE: 19 November 2014 CASE NUMBER: AR20140000323 ___________________________________________________________________________ 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. Although the applicant did not properly annotate his application requesting for a possible discharge upgrade, the Board would consider his request for an upgrade from a bad conduct discharge to honorable according to Department of Defense Instruction (DoDI) 1332.28. His request includes a change to the reentry code. 2. The applicant states, in effect, he deserves his discharge although another Soldier in a similar situation was returned to active duty. Since his discharge, he attended college and ran his own business. He has matured and grown morally. He would like a second chance with serving his country. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 26 December 2013 b. Discharge Received: Bad Conduct c. Date of Discharge: 17 December 2010 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: HHB, A Co, 209th Aviation Support Bn, Wheeler Army Airfield, HI f. Current Enlistment Date/Term: 8 August 2007, 6 years g. Current Enlistment Service: 3 years, 4 months, 10 days h. Total Service: 5 years, 1 month, 17 days i. Time Lost: 172 days j. Previous Discharges: USAR (050511-050523) / NIF ADT (050524-051109) / NIF USAR (051110-060227) / HD RA (060228-070807) / HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92W10, Water Treatment Specialist m. GT Score: 102 n. Education: GED o. Overseas Service: Hawaii and SWA p. Combat Service: Iraq (060724-071004) q. Decorations/Awards: ARCOM; NDSM; ICM-CS; GWOTSM; ASR; MUC r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 28 February 2006, and reenlisted on 8 August 2007, for a period of 6 years. He was 19 years old at the time of entry and had a high school equivalency (GED). He was trained in and awarded military occupational specialty (MOS) 92W10, Water Treatment Specialist. He served in Hawaii and Iraq. He earned an ARCOM. He completed 5 years, 1 month, and 17 days of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 29 September 2008, the applicant was found guilty by a general court-martial of the following offenses: a. Charge I, violation of Article 81, UCMJ, for wrongfully appropriating property of PVT F in the amount of approximately $2,000 (080325-080402) and to effect a conspiracy, he and another Soldier wrongfully appropriated property of a value of $5,000 from PVT F. b. Charge II, violation of Article 121, UCMJ, three specifications: (1) larceny of property belonging to PVT F, a value of more than $500 (080325-080402); (2) wrongful appropriation of government property, of a value of $100 (080525); and (3) larceny of a property of AAFES, of a value of $5.25 (080505). c. Charge III, violation of Article 130, UCMJ, two specifications of unlawfully breaking and entering the dwelling of PVT F to commit a criminal offense (080325 and 080326-080402). He was sentenced to be discharged with a Bad Conduct Discharge and confinement for 12 months. 2. On 13 November 2008, only so much of the sentence as provides for seven months confinement and a bad conduct discharge was approved and, except for the bad conduct discharge, the sentence was ordered to be executed. 3. The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review and subsequently, the United States Army Court of Military Review affirmed the approved findings of guilty and ordered the sentence to be executed according to General Court-Martial Order Number 199, dated 27 August 2010. 4. The applicant was separated from the Army on 17 December 2010, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4. 5. The applicant’s service record shows he had 172 days of time lost due to military confinement, from 29 September 2008 through 19 May 2009. The record also shows 621 days of excess leave, from 6 April 2009 through 17 December 2010. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. General Court-Martial Order Number 199, dated 27 August 2010, shows the appellate review process that ordered the bad conduct discharge be executed. 2. General Court-Martial Order Number 12, dated 13 November 2008, shows the applicant was found guilty of three charges on 29 September 2008, by a general court-martial as described at the preceding paragraph 1, under separation facts and circumstances, above that includes the approved court-martial sentence adjudged. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided copies of his unauthenticated 2009 Form 1040, Schedule SE (Form 1040), and Schedule C (Form 1040), and postal receipt for payment to IRS, dated 14 April 2010. POST-SERVICE ACTIVITY: The applicant states, in effect, since his discharge, he attended college and ran his own business. 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. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial, Other. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and to change the reentry code for 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 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 provided insufficient corroborating or supporting evidence toward a consideration for an upgrade based on clemency. The applicant’s statement alone does not overcome the basis for the characterization of service rendered by an adjudged court-martial sentence. 5. The applicant contends he deserves his discharge although another Soldier in a similar situation was returned to active duty. However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 6. The applicant contends that since leaving the Army he attended college and ran his own business. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 7. The applicant contends that he was young and immature at the time of the discharge. He has since matured and grown morally. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 8. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 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. 9. The records show the proper discharge and separation authority procedures were followed in this case. 10. 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: 19 November 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) AR20140000323 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1