IN THE CASE OF: Mr. BOARD DATE: 18 March 2015 CASE NUMBER: AR20140005501 ___________________________________________________________________________ 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 or honorable. 2. The applicant states, in effect, he made some positive changes in his life which merits an upgrade. He deployed to Iraq, received several awards, other ribbons and medals; and he was a good Soldier. His discharge makes it difficult to advance in society and obtain employment. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 March 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 8 February 2013 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: E Co, 2-14th Infantry Regiment, 2nd Brigade Combat Team, Fort Drum, NY f. Current Enlistment Date/Term: 8 July 2005, 5 years g. Current Enlistment Service: 6 years, 10 months, 21 days h. Total Service: 8 years, 10 months, 24 days i. Time Lost: 255 days j. Previous Discharges: RA (030702-050707)/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 87 n. Education: HS Graduate o. Overseas Service: Germany/Southwest Asia p. Combat Service: Iraq (060801-070831) q. Decorations/Awards: AGCM, NDSM, ICM-W/CS, GWOTEM, GWOTSM, ASR, OSR-2 r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 2 July 2003, for a period of 4 years. He was 19 years old at the time of entry and a HS Graduate. He was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator. He reenlisted on 8 July 2005, for a period of 5 years and was 21 years old. His record shows he served a tour in combat and earned an AGCM; and he achieved the rank of SPC/E-4. He was returned to military control and assigned to Fort Sill, OK where the judicial process was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows on 28 June 2011, the applicant was found guilty by a special court-martial for being AWOL (100910-110127). 2. He was sentenced to a reduction to E-1, confinement for five months and a bad conduct discharge. 3. On 26 January 2012, 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. The United States Army Court of Military Review affirming the approved findings of guilty and the sentence is not contained in the available record and government regularity is presumed in the judicial process. 4. On 30 November 2012, the sentence was ordered to be executed. 5. The applicant was separated from the Army on 8 February 2013, with a bad conduct discharge, a separation code of JJD, and a reentry eligibility (RE) code of 4. 6. The applicant’s record of service indicates 140 days of time lost for being AWOL from 10 September 2010 until 27 January 2011, when he was apprehended by civil authorities. He was confined by military authorities from 28 June 2011 until 22 October 2011 for 115 days. The total time lost was 255 days. Also he had 455 days of excess leave from 12 November 2011 until 8 February 2013. Furthermore, Special Court-Martial Order Number 7 shows the applicant was a deserter as of 4 May 2007; his plea was not guilty, but was found guilty of the lesser offense of AWOL beginning on 10 September 2010. Also see DD Form 553 in paragraph 2 below. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A Special Court-Martial Order adjudged on 28 June 2011, which shows the applicant, was found guilty for being AWOL. He was sentenced to a reduction to E-1, confinement for five months and a bad conduct discharge. 2. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 4 May 2007, indicating the applicant was wanted as a deserter. 3. DD Form 616 (Report of Return of Absentee), dated 27 January 2011, indicating the applicant was apprehended by civil authorities while in a deserter status. 4. Two DA Forms 4187 (Personnel Action), dated 13 July 2007 and 25 October 2011, which shows the applicant’s present for duty and confinement dates. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, four character statements, Enlisted Record Brief (ERB), and a DD Form 214. POST-SERVICE ACTIVITY: The applicant stated in his application he is pursuing a master’s degree in accounting. 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’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, the issues and document 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 made some positive changes in his life which merits an upgrade. The applicant is to be commended for his effort. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. 5. The applicant further contends he deployed to Iraq, received several awards, other ribbons and medals; and he was a good Soldier. The applicant’s service accomplishments and the quality of his service prior to the incident that caused the initiation of judicial proceedings was carefully considered. However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and the characterization of service granted 6. The applicant also contends his discharge makes it difficult to advance in society and obtain employment. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 7. The third party statements provided with the application speak highly of the applicant’s character. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 8. The records show the proper judicial procedures were followed in this case. 9. 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: 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) AR20140005501 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1