IN THE CASE OF:  	Mr.

      BOARD DATE:  	17 July 2013

      CASE NUMBER:  	AR20130003929
___________________________________________________________________________

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 served honorably for five years, despite being diagnosed with PTSD and dealing with a drug addicted wife.  He contends the last year of his enlistment became unbearable due to the effects of these two conditions, and he was finally court-martialed and discharged.  He contends he repeatedly asked his commanding officer for help, but was told the mission was more important.  At one point, one of his friends was killed doing his job, because he was unable to do his own job.  This led him to drinking because he couldn't do anything about his decision.  He continued to ask for help, but received none.  Finally he asked the Red Cross for help which he received.  He contends he had to borrow $19,000 to get his children out of foster care and refurbish his house and get his wife out of the drug house she was in.  He was deployed to Iraq although he needed to stay home and take care of his family, but the Army sent him anyway.  He was then diagnosed with Post-Traumatic Stress Disorder (PTSD) by the Army.  He believes he lost his family, his career and his life, because the Army did not provide him with the help he needed. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 March 2013
b. Discharge Received:			Bad Conduct Discharge
c. Date of Discharge:				28 March 2012
d. Reason/Authority/SPD/RE Code:	  	Court-Martial, Other, AR 635-200, Chapter 3 								JJD, RE-4
e. Unit of assignment:				D Co, 1st Bn, 3d US IN Regt (The Old Guard) 							Fort Myer, VA	
f. Current Enlistment Date/Term:		16 March 2006, 4 years and 16 weeks
g. Current Enlistment Service:		5 years, 11 month, 7 days
h. Total Service:				5 years, 11 month, 7 days
i. Time Lost:					37 days  
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					103
n. Education:					GED
o. Overseas Service:				Southwest Asia
p. Combat Service:				Iraq (060915-061028 and 080407-090509)
q. Decorations/Awards:			AAM-2, NDSM, AGCM, ICM-w/3CS 									GWOTSM, ASR, CIB
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 16 March 2006, for a period of 4 years and      16 weeks.  He was 19 years old and had a high school equivalency (GED).  He served two combat tours in Iraq.  He earned two AAM’s and completed 5 years, 11 months, and 7 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 20 May 2011, the applicant was found guilty by a special court-martial of the following charge:

      a.  wrongfully distributed 8 pills of Amphetamine (100518)
      
      b.  wrongfully distributed 10 pills of Amphetamine (100519)
      
      c.  wrongfully distributed 10 pills of Amphetamine (100605)
      
2.  He was sentenced to a Bad Conduct Discharge and confinement for 45 days.

3.  On 26 June 2011, the applicant was released from confinement (after serving 37 days).  He was placed on excess leave for 277 days (110626-120328).

4.  On 12 September 2011, the sentence was approved except for the part extending to a bad conduct discharge.  

5.  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 November 2011, The United States Army Court of Military Review affirmed the approved findings of guilty.

6.  On 19 March 2012, the sentence was ordered to be executed.  The reduction to private E-1 as required in accordance with Article 58a, UCMJ, was approved effective 12 September 2011.

7.  The applicant was separated from the Army on 28 March 2012, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4.

8.  The applicant’s service record shows he had 37 days of lost time (110520-110625) as a result of his military confinement.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order, adjudged on 20 May 2011, which shows the applicant, was found guilty as described in paragraph 1 above.  His punishment consisted of a Bad Conduct Discharge and confinement for 45 days.  Reduction to private E-1 was required in accordance with Article 58a, UCMJ, and was effective the date of the action.

EVIDENCE SUBMITTED BY THE APPLICANT:

No supporting documentation was provided with the application.

POST-SERVICE ACTIVITY: 

None were provided with the application.

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, 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 his misconduct was the result of family problems (i.e. addicted wife and children being place in foster care) and that the Army provided him with no help.  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 this issue.  The record of evidence does not demonstrate that he sought assistance through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

5.  The applicant also contends he was diagnosed with PTSD.  However, the service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

6.  In view of the foregoing, the characterization of service being both proper and equitable, recommend the Board deny clemency.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Record Review		  Date:  17July 2013         Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

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

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)		AR20130003929



Page 5 of 5 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1