AR20160006097

1. Applicants Name:
a. Application Date: 5 January 2015

b. Date Received: 22 March 2015

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge from bad conduct to honorable. The applicant seeks relief contending, pertinent part and in effect, his discharge is inappropriate because it was based on an isolated incident in several years of service. He was charged with receiving stolen property; however, he was the person who turned in the Soldiers who stole the property. He received many commendations and awards. He served his confinement without incident. As such, his discharge should be reviewed and reconsidered.

In a personal appearance hearing conducted at Arlington, VA on 7 November 2016, and by a
5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

(Board member names available upon request)

3. DISCHARGE DETAILS:

a. Reason/Authority/Codes/Characterization: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct

b. Date of Discharge: 29 February 2008

c. Separation Facts:

(1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 2, dated 7 January 2005, as corrected by Special Court-Martial Order 38, dated 22 December 2006, on 1 July 2004, the applicant was found guilty of the following charge:

Charge III: Violation of Article 134, UCMJ, for wrongfully receiving stolen property of PFC M. between 15 December 2003 and 31 December 2003.

(2) Adjudged Sentence: Reduction to E-1, confinement for six months, and to be discharge from the service with a Bad-Conduct Discharge.

(3) Date/Sentence Approved: The initial action approving the sentence on 7 January 2005, was set aside on 31 August 2006, by the United States Army Court of Criminal appeals for a new review and action. Subsequently, on 22 December 2006, only so much of the sentence was approved extending to four months confinement (the sentence to confinement had been served), reduction to E-1, and, except for that part of the sentence extending to a bad conduct discharge, would be executed.

(4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and on 21 March 2007, the United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence

(5) Date Sentence Ordered Executed: 23 August 2007

4. SERVICE DETAILS:

a. Date/Period of Enlistment: 20 April 2001 / 4 years (Note that the applicant was retained in service for an additional 958 days for the convenience of the government.)

b. Age at Enlistment/Education/GT Score: 22 / HS Graduate / 96

c. Highest Grade Achieved/MOS/Total Service: E-4 / 88M10, Motor Transport Operator / 6 years, 7 months, 15 days (Note that the applicant was placed on an involuntary excess leave, creditable for all purposes, except pay and allowance for 1,251 days from 27September 2004 through 29 February 2008.)

d. Prior Service/Characterizations: None / NA

e. Overseas Service/Combat Service: None / None

f. Awards and Decorations: ARCOM; AAM; NDSM; ASR

g. Performance Ratings: None

h. Disciplinary Action(s)/Evidentiary Record:

Special Court-Martial Order Number 2, dated 7 January 2005 (revoked), described at the preceding paragraph 3c(1) and 3c(2), was corrected by Special Court-Martial Order 38, dated 22 December 2006,.
United States Army Court of Criminal Appeals decision, dated 21 March 2007.
Special Court-Martial Order Number 148, dated 23 August 2007, ordered the Bad Conduct Discharge to be executed.

i. Lost Time: 87 days (Military confinement from 1 July 2004 through 26 September 2004)

j. Diagnosed PTSD/TBI/Behavioral Health: None

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 5 January 2016; DD Form 214; SPCM Order No. 148, dated 23 August 2007; and congressional correspondence and its attachments, dated 4March 2016.

6. POST SERVICE ACCOMPLISHMENTS: None.

7. REGULATORY CITATION(S): 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.

Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicants 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.

8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of his discharge from bad conduct to honorable. The applicants available record of service, and the issues and documents submitted with his application were carefully reviewed.

The record confirms there was 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.

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. Because relevant and material facts stated in a court-martial specification are presumed by the Army Discharge Review Board (ADRB) to be established facts, issues relating to the applicants 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.

The applicant contends his discharge was inappropriate because it was based on an isolated incident in several years of service. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant’s incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.

The applicant also contends the discharge was inappropriate because, although he was charged with receiving stolen property, he was the person who turned in the Soldiers who stole the property. However, 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. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicants statements alone do not overcome the governments 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. It is also reemphasized that court-martial convictions stand as adjudged or modified by appeal only through the judicial process.

In consideration of the applicants service accomplishments and the quality of his service prior to the incidents that led to the court-martial proceedings were carefully considered. However, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service based on clemency.

The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process.

9. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

a. The applicant submitted the following additional documents:

Email from applicant 4 pages
Letter of Reference from Ms. M.G. 1 page
Character Letter from Ms. L.G. 1 page

b. The applicant presented no additional contentions.

c. Witness(es)/Observer(s): None

10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on
7 November 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.

11. BOARD ACTION DIRECTED:

a. Issue a New DD-214/: No

b. Change Characterization to: No Change

c. Change Reason to: No Change

d. Change SPD/RE Code to: No Change

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

Legend:
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
BH –
Behavioral Health
HD –
Honorable Discharge
OAD –
Ordered to Active Duty
SPD –
Separation Program Designator
CG –
Company Grade Article 15
IADT –
Initial Active Duty Training
OMPF –
Official Military Personnel File
TBI –
Traumatic Brain Injury
CID –
Criminal Investigation Division
MP –
Military Police
PTSD –
Post-Traumatic Stress Disorder
UNC –
Uncharacterized Discharge
ELS –
Entry Level Status
MST –
Military Sexual Trauma
RE –
Reentry
UOTHC –
Under Other Than Honorable Conditions
FG –
Field Grade Article 15
VA –
Veterans Affair

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160006097

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