AR20160003911

1. Applicants Name:

a. Application Date: 10 February 2016

b. Date Received: 16 February 2016

c. Counsel: None

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions) or honorable. The applicant seeks relief contending, in effect, during his military service he was not mature mentally to comprehend what a bad-conduct discharge would pose. He is trying to make a change to better his life. He has been sober, free from alcohol and drugs since 5 March 2007.

Per the Board’s Medical Officer, based on the information available for review at the time, the applicant had no mitigating medical or behavioral health condition for the offenses which led to his separation from the Army.

In a personal appearance hearing conducted at Arlington, VA on 26 September 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: 12 December 2006

c. Separation Facts:

(1) Date of Notification of Intent to Separate: NA

(2) Basis for Separation: The applicant was found guilty by a Special Court-Martial of the following offenses; being AWOL x7 (15 March 2004-17 March 2004), (1 March 2004-2 March 2004), (1 January 2004-6 January 2004), (9 July 2003-22 November 2003), (19 February 2003-23 June 2003), (15 May 2004-21 May 2004) and (24 May 2004-12 July 2004); without authority, fail to go at the time prescribed to his appointed place of duty (8 March 2004); wrongfully using cocaine x2 between (2 March 2004 and 9 March 2004) and (11 March 2004 and 18 March 2004); wrongfully using D-methamphetamine x3 between (2 March 2004 and 9 March 2004) and (11 March 2004 and 18 March 2004) and (14 May 2004-21 May 2004); and wrongfully using marijuana between (18 February 2004 and 18 March 2004). On 13 July 2004, he was sentenced to a reduction to PVT / E-1, forfeiture of $795 pay for seven months, confinement for seven months and to be discharged from the service with a bad-conduct discharge.

On 13 December 2004, the sentence was approved. The record of trial being forwarded to The US Army Court of Criminal Appeals for review, the sentence being affirmed, Article 71(c) having been complied with, and the bad conduct discharge order being executed, is not contained in the available record and government regularity is presumed in the judicial process.

(3) Recommended Characterization: NA
(4) Legal Consultation Date: NA

(5) Administrative Separation Board: NA

(6) Separation Decision Date/Characterization: 12 December 2006 / Bad-Conduct

4. SERVICE DETAILS:

a. Date/Period of Enlistment: 19 May 1999 / NIF

b. Age at Enlistment/Education/GT Score: 29 / NIF / 125

c. Highest Grade Achieved/MOS/Total Service: E-5 / 35K10, Apache Attack Helicopter System Repairer / 16 years, 4 months, 3 days

d. Prior Service/Characterizations: USAR (3 April 1989-8 May 1989) / NA
RA (9 May 1989-4 February 1993) / HD
RA (5 February 1993-15 December 1996) / HD
RA (16 December 1996-22 July 1997) / HD
RA (23 July 1997-18 May 1999) / HD

e. Overseas Service/Combat Service: Hawaii

f. Awards and Decorations: AAM, AGCM-4, NDSM-2, GWOTSM, NCOPDR, ASR, OSR

g. Performance Ratings: June 1997-May 1998, Among The Best
June 1998-December 1998, Fully Capable
January 1999-August 1999, Fully Capable
September 1999-August 2001, Among The Best
September 2001-January 2002, Marginal

h. Disciplinary Action(s)/Evidentiary Record: Special Court-Martial, see paragraph 3c(2) above.

i. Lost Time: The applicant was AWOL x7 for 329 days; (15 March 2004-17 March 2004), for 3 days; (1 March 2004-2 March 2004), for 2 days; (1 January 2004-6 January 2004), for 6 days; (9 July 2003-22 November 2003), for 135 days; (19 February 2003-23 June 2003), for 126 days; and (15 May 2004-21 May 2004), for 7 days; and (24 May 2004-12 July 2004), for 51 days; mode of return for all periods is unknown. The applicant was confined by military authorities (14 July 2004-18 November 2004), for 125 days. Total lost time 454 days. He also had 707 days of excess leave (5 January 2005-12 December 2006).

j. Diagnosed PTSD/TBI/Behavioral Health: NIF

5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages).

6. POST SERVICE ACCOMPLISHMENTS: None provided by the applicant.

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 a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and 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 his bad conduct discharge to general, under honorable conditions or honorable. The applicants available record of service, and the issues submitted with his application were carefully reviewed.

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.

The applicant seeks relief contending, in effect, during his military service he was not mature mentally to comprehend what a bad-conduct discharge would pose. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

The applicant further contends, he is trying to make a change to better his life; he has been sober, free from alcohol and drugs since 5 March 2007. The applicant is to be commended for his efforts. 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.

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:

Medical Records

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 26 September 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 NCO Noncommissioned Officer 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 NOS Not Otherwise Specified SPD – Separation Program Designator
CG – Company Grade Article 15 IADT – Initial Active Duty Training OAD – Ordered to Active Duty TBI Traumatic Brain Injury
CID – Criminal Investigation Division MP Military Police OMPF – Official Military Personnel File UNC – Uncharacterized Discharge
ELS Entry Level Status MST Military Sexual Trauma PTSD Post-Traumatic Stress Disorder UOTHC – Under Other Than Honorable Conditions
FG – Field Grade Article 15 NA – Not applicable RE – Reentry VA Veterans Affairs

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160003911

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