IN THE CASE OF: Ms. BOARD DATE: 17 April 2015 CASE NUMBER: AR20140002570 ___________________________________________________________________________ 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, through counsel, an upgrade of her bad conduct discharge to honorable or general, under honorable conditions and a change to the narrative reason and reentry code. 2. Counsel states, in effect, at the time of the applicant’s discharge, she was very young and overwhelmed by family obligations and mental health issues. Counsel states, the applicant took responsibility for her actions by pleading guilty and her chain of command wanted to avoid the applicant receiving a bad conduct discharge by recommending an under other than honorable conditions discharge. Counsel contends the applicant did not receive a mental health evaluation nor was there any mention of the applicant’s mental breakdown or hospital stay. Counsel contends, since the applicant’s discharge, she is a respected member of her community and church with overwhelming support, is a certified American Sign Language (ASL) instructor, certified electrician, typist, and has computer technician training, dog training, and a seamstress. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 February 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 15 March 2001 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, Section IV, JJD, RE-4 e. Unit of assignment: HHC, 187th Ordnance Battalion, Fort Jackson, SC f. Current Enlistment Date/Term: 28 August 1990/4 years, 10 months (10 month extension on 921015) g. Current Enlistment Service: 10 years, 6 months, 18 days (Extended 2,392 days for the convenience of the government) h. Total Service: 10 years, 6 months, 18 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92G10, Food Service Specialist m. GT Score: 102 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: NA t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 28 August 1990, for a period of 4 years. She was 20 years old at the time of entry and a high school graduate. Her record is void of any significant acts of valor and achievement. She completed 10 years, 6 months, 18 days of active duty service. She was extended on active duty 2,392 days at the convenience of the government. When her discharge proceedings were initiated, she was serving in Fort Knox, KY. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 18 October 1993, the applicant was found guilty by a special court-martial of stealing a Visa credit card (930616), attempting to steal a Pulsar brand watch (930616), a diamond and ruby ring (930616), and forgery by falsely making a credit charge receipt (930616). She was sentenced to a reduction to the grade of E-1 and discharged with a Bad Conduct Discharge. 2. On 2 December 1993, 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 30 June 1994, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 3 January 1995, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 15 March 2001, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. The record also shows 2,641 days of excess leave from 22 December 1993 to 15 March 2001. 5. The applicant’s service record does not reflect any actions under the UCMJ or unauthorized absences. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order Number 1, dated 3 January 1995, ordered the bad conduct discharge to be executed. 2. Special Court-Martial Order Number 7, dated 2 December 1993, approved the applicant’s sentence to a reduction to the grade of E-1 and a Bad Conduct discharge. 3. Request for discharge in lieu of trial by court-martial, dated 14 September 1993. The request was disapproved on 28 September 1993 by the general court-martial convening authority. 4. DA Form 458 (Charge Sheet), dated 13 September 1993, reflects the applicant was charged with stealing a Visa credit card, attempting to steal a Pulsar brand watch and diamond and ruby ring, and falsely making a credit card charge receipt on 16 June 1993. 5. An offer to plead guilty, dated 14 October 1993, reflects the applicant offered to plead guilty to all charges and their specifications. 6. Oath of Extension of Enlistment, dated 15 October 1992, extended the applicant’s enlistment on 28 August 1990 to 4 years and 10 months. EVIDENCE SUBMITTED BY THE APPLICANT: Counsel provided a DD Form 293, dated 3 February 2014, a DD Form 214, a statement addressing the applicant’s contentions, dated 2 January 2014, Special Court-Martial Order Number 7, dated 2 December 1993, chain of command recommendations for Chapter 10, Chapter 10 disapproval, dated 28 September 1993, applicant’s Chapter 10 request, dated 14 September 1993, allied court-martial documents, eleven letters in support of the applicant’s application, inpatient treatment record coversheet, dated 4 October 1993, and Special Court-Martial Order Number 1, dated 3 January 1995. POST-SERVICE ACTIVITY: Counsel states the applicant is a well respected member of her community and church, is a certified ASL instructor, certified electrician, typist, and has computer technician training, dog training, and a seamstress. 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, Section IV, 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 her discharge was carefully considered. However, after examining the applicant’s record of service, her military records, the documents 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. Counsel further requests a change in the reason for the discharge and the applicant’s reentry code. However, Army Regulation 635-5-1 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, Section IV of Chapter 3. The regulation further stipulates that no deviation is authorized. 5. Further, 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. An RE code of 4 cannot be waived. A change in the reason for discharge is not authorized under Federal statute. 6. Counsel contends the applicant did not receive a mental health evaluation nor was there mention of her mental breakdown and hospital stay. Although Counsel provided a document to support the applicant was diagnosed with a borderline personality disorder, this does not however, support a conclusion that this mental condition rendered the applicant unfit for further service at the time of her discharge processing. The available evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during her discharge processing that would have warranted her separation processing through medical channels. 7. Moreover, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. Counsel, on the applicant’s behalf, bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue. There is no evidence in the record, nor has Counsel produced any evidence to support the contention that the applicant was unjustly discriminated. Counsel statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 8. The records show the proper discharge and separation authority procedures were followed in this case. 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: 17 April 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: Yes [redacted] 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: No Change Change Authority for Separation: NA 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) AR20140002570 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1