IN THE CASE OF: Mr. BOARD DATE: 18 March 2015 CASE NUMBER: AR20140003844 ___________________________________________________________________________ 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 his bad conduct discharge be upgraded to general, under honorable conditions. 2. The applicant states, in effect, he wants to receive veteran affairs (VA) benefits and clear up an injustice that was done to him in the military due to his medical condition. He states his medical condition contributed to his bad conduct discharge. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 February 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 6 March 2009 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: Headquarters, Multi-National Corps, Baghdad, Iraq f. Current Enlistment Date/Term: 22 June 2005, 3 years g. Current Enlistment Service: 3 years, 7 months, 21 days h. Total Service: 3 years, 7 months, 21 days i. Time Lost: 23 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 88M10 Motor Transport Op m. GT Score: 95 n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq q. Decorations/Awards: NDSM, GWOTSM, ASR 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 22 June 2005, for a period of 3 years. He was 20 years old at the time and had a high school equivalency (GED). The record does not contain any evidence of acts of valor or meritorious achievement. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows on 1 July 2007, the applicant was found guilty of multiple offenses by a Special Court-Martial for; failing to go to his appointed place of duty x16; (061031), (061109), (061111), (061201), (061202), (070213), (070215), (070222), (070223), (070302), (070303), (070324), (070327), (070330), (070402), (070403); disobeyed a lawful order from several noncommissioned officers x4, (061111), (061112), (061113), (070324); and being disrespectful in language towards a noncommissioned officer (070224). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 30 days, and reduction to the grade of Private (E-1). 2. On 14 January 2008, the sentence was approved except for the part of the sentence extending to a bad conduct discharge will be executed. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. On 14 July 2008, The United States Army Court of Military Criminal Appeals affirmed the approved findings of guilty and the sentence. 3. On 20 November 2008, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 6 March 2009, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. 5. The applicant’s service record shows he had 591 days of excess leave from 25 July 2007 until his discharge from the Army on 6 March 2009. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order 3 dated 14 January 2008 finding the applicant guilty of 14 specifications of violating Article 86 of the UCMJ, five specifications of violating Article 91 of the UCMJ. 2. Record of Result of Court-Martial dated 1 July 2007. 3. Confinement Order dated 1 July 2007. 4. Special Court-Martial Order 215 dated 20 November 2008 directing execution of the Bad Conduct discharge. 5. DA Form 4187s showing the applicant was confined in the Regional Correctional Facility as a result of the court-martial sentence adjudged on 1 July 2007 until his release from confinement on 25 July 2007. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 15 February 2014. POST-SERVICE ACTIVITY: The applicant did not provide any with the application. REGULATORY AUTHORITY: 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. Issues Concerning Bad-Conduct Discharges (BCD): 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. 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 his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, 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. The applicant contends he would like to receive VA benefits. Eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 5. The applicant contends he wants to clear up an injustice done to him in the military due to his medical condition. While the applicant may believe an injustice was done to him and a contributing factor to his medical condition, the applicant’s record does not show any evidence of the applicant ever having a medical condition. Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct. 6. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. 7. The records show the proper discharge and separation authority procedures were followed in this case. 8. After a thorough review of the applicant’s record and the issue submitted with the application, the analyst found no cause for clemency and therefore recommends to the Board to deny clemency. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 18 March 2015 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) AR20140003844 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1