IN THE CASE OF: Mr. BOARD DATE: 15 December 2014 CASE NUMBER: AR20140001060 ___________________________________________________________________________ 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 the discharge was both proper and equitable 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. 2. The applicant states, in effect, he received a special court-martial 15 January 2003, and was sentenced to four months confinement and a bad conduct discharge. In 2006 he received his DD Form 214, stating he had received a bad conduct discharge. However, after reviewing the document, dated 1 May 2003, he believes the bad conduct discharge part of his sentence was overturned by a superior officer. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 9 January 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 27 January 2006 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD RE-4 e. Unit of assignment: 73rd EN Co, 1st Bn, 24th IN Rgt, Fort Lewis, WA f. Current Enlistment Date/Term: 6 January 2000, 4 years g. Current Enlistment Service: 3 years, 10 months, 28 days h. Total Service: 3 years, 10 months, 28 days i. Time Lost: 782 days j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 12B10, Combat Engineer m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 6 January 2000, for a period of 4 years. He was 24 years old at the time of entry and a high school graduate. He was serving at Fort Lewis, WA when separation action was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. The applicant DD Form 214 shows in block 12c "net active service this period," 5 years, 9 months, and 13 days; however, the document does not account for the applicant's period of AWOL (001211-021031). Also the applicant's DD Form 214 shows in block 29 "dates of time lost during this period," (030115-030423) for what it appears to be for being confined; however, documents in the record show the applicant was confined (030115-030418). SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 15 January 2003, the applicant was found guilty by a special court-martial of going AWOL (001211-021031). 2. He was sentenced to a Bad Conduct Discharge, reduction to the grade of E-1, and confinement for four (4) months. 3. On 18 April 2003, the applicant was released from confinement (after the completion of his sentence to confinement). Evidence in the record shows the applicant was placed on excess leave 24 April 2003 pending completion of an appellate review of his punitive discharge. 4. On 1 May 2003, the sentence was approved except for the part extending to a bad conduct discharge. The applicant was credited with four (4) days of confinement credit against the approved sentence to confinement. 5. The record of trial was forwarded to The United States Army Court of Criminal Appeals for review on 27 August 2004, which affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact. 6. On 15 April 2005, the Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. The applicant was credited with four days of confinement credit against the sentence to confinement. The portion of the sentence extending to the confinement had been served. 7. The applicant was separated from the Army on 27 January 2006, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4. 8. The applicant’s service record shows he had 782 days of lost time; 689 days for going AWOL from 11 December 2000, until his return on 31 October 2002, and 93 days for being confined by the military authorities 15 January 2003, until 18 April 2003; as a result of punishment received from his special court-martial. The DD Form 214 under review also shows the applicant had 28 days of excess leave 24 April 2003, until 21 May 2003. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Charge sheet, dated 10 January 2001, for desertion 11 December 2000, until 10 January 2001. 2. Four DA Forms 4187 (Personnel Action) which changed the applicant's duty status from present for duty (PDY) to absent without leave (AWOL), AWOL to dropped from rolls, PDY to confined by military authorities and confined by military authorities to PDY. 3. A report of return of absentee (DD Form 616), indicating the applicant was apprehended after going AWOL 11 December 2000. 4. Special Court-Martial Order 19, dated 1 May 2003, which shows the applicant, was found guilty of desertion after going AWOL 11 December 2000, which was terminated by apprehension on 31 October 2002. His punishment consisted of a Bad Conduct Discharge, reduction to the grade of E-1, and confinement for four months. The sentence was approved and except for that part of the sentence extending to a bad conduct discharge was ordered to be executed. The applicant was credited with four days of confinement credit against the approved sentence to confinement. 5. Special Court-Martial Order 30, dated 15 April 2005, which ordered the portion of the sentence extending to the bad conduct discharge to be executed. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application dated 25 December 2013, a copy of his reassignment orders dated 19 January 2006, Special Court-Martial Order number 19, dated 1 May 2003, and a DD Form 214 for the period of service under review. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. 2. However, after examining the applicant’s record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to warrant clemency. 3. 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. 4. 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. 5. The applicant contends in 2006 he received his DD Form 214, stating he had received a bad conduct discharge. However, after reviewing the document, dated 1 May 2003, he believes the bad conduct discharge part of his sentence was overturned by a superior officer. However, the action section of the special court-martial order number 19, dated 1 May 2003, indicates the sentence was approved except for the part of the sentence extending to a bad conduct discharge which was not executed pending the applicant's appeals process. 6. Further, the record of trial was forwarded to The United States Army Court of Criminal Appeals for review on 27 August 2004, which affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact. 7. On 15 April 2005, the applicant's special court-martial having been affirmed and Article 71(c) having been complied with, the applicant's bad conduct was ordered to be executed. 8. In view of the foregoing, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny clemency. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 15 December 2014 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: 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) AR20140001060 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1