IN THE CASE OF: BOARD DATE: 9 July 2014 CASE NUMBER: AR20140002358 ___________________________________________________________________________ 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 clemency. 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 general, under honorable conditions. 2. The applicant states, in effect, it has been over 13 years since her discharge from the Army. She was a good NCO who made a poor decision but accepted responsibility for her actions and accepted her punishment. She believes she is still being punished by her characterization of service and would like to have it upgraded. She contends once she found out what her ex-boyfriend was doing she tried to stop it but in the process committed an illegal transaction. She states since her discharge and release, she has earned an associate’s degree and completed a national pharmacy certification. She states an upgrade of her characterization of service would assist her in making a better life for herself and her children. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 3 April 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 30 May 2003 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3 Section IV, JJD, RE-4 e. Unit of assignment: 540th Quartermaster Company, Schofield Barracks, HI f. Current Enlistment Date/Term: 22 May 1997/4 years g. Current Enlistment Service: 6 years, 9 days h. Total Service: 8 years, 1 month, 14 days i. Time Lost: 147 days j. Previous Discharges: DEP, 940826-941116, NA RA, 941117-970521, HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 57E10, Laundry and Bath Specialist m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: AGCM, NDSM, NPDR, ASR r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 17 November 1994, for a period of 3 years. She was 24 years old at the time of entry and a high school graduate. She reenlisted in the Army on 22 May 1997, for 4 years. Her record is void of any significant acts of valor and achievement. She completed 8 years, 1 month, and 14 days of active duty service. When her discharge proceedings were initiated, she was serving at Schofield Barracks, Hawaii. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 7 March 2000, the applicant was found guilty by a special court-martial of wrongfully distributing less than 30 grams of marijuana and conspiring to distribute less than 30 grams of marijuana. 2. She was sentenced to a Bad Conduct Discharge, confinement for six months, reduction to the grade of E-1, and forfeiture of $600 pay per month for six months. 3. On 4 January 2001, the sentence was approved except for the part extending to a bad conduct discharge. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 14 February 2001. On 16 July 2002, the United States Army Court of Military Review affirmed the approved findings of guilty. On 16 January 2003, the bad conduct discharge was ordered to be executed. The portion of the sentence extending to confinement had been served. 4. The applicant was separated from the Army on 30 May 2003, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. 5. The applicant’s service record shows she had 147 days of time lost and 1,027 days of excess leave. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Special Court-Martial Order adjudged on 7 March 2000, which shows the applicant, was found guilty as described in paragraph 1 above. Her punishment consisted of a Bad Conduct Discharge, confinement for six months, reduction to the grade of E-1 and forfeiture of pay in the amount of $600 pay per month for six months. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 10 August 2013; a DD Form 214 covering the period of service under review; a self-authored statement addressing her contentions, dated 13 September 2013; Discharge Orders Number 136-37, dated 16 May 2003, discharged the applicant from the military, effective 30 May 2003; SGLI allotment, dated 2 February 1999; two letters in support of the applicant’s petition from SFC(R) H and Mr. H; an NCOER covering the period of March 1998 through January 1999; Court-Martial documents; DA Form 1059, dated 12 February 1998; Permanent Orders Number C-349-3, dated 15 December 1997, awarding the Army Good Conduct Medal; Promotion Orders Number C069-24, dated 10 March 1998, two DA Form 4187 (Personnel Action), dated 14 March 2001, changed the applicant’s duty status from present for duty (PDY) to confined by military authorities and confined by military authorities to PDY; and a document showing PVT S as the accused with sentence and action. POST-SERVICE ACTIVITY: The applicant states she has not been in any trouble with the law since her discharge from the Army, she has earned an associates degree, and a national certification as a pharmacy technician. 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 her discharge was carefully considered. However, after examining the applicant’s record of service, her military records, and the issue 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 incident 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 since being discharged she has not been in any trouble with the law, has earned an associate’s degree and national certification as a pharmacy technician. The applicant is commended for her efforts to be a good citizen. The applicant’s post-service accomplishments have been noted as outlined on the application and in the two letters of support 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. 5. The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 6. 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: 9 July 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None 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: No Change Change Authority for Separation: No Change Change RE Code to: No Change 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) AR20140002358 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1