IN THE CASE OF:	Mr. 

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130005593
___________________________________________________________________________

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 determined the discharge was both proper and equitable 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 fully honorable.

2.  The applicant states, in effect, he was a psychiatric patient three times while on active duty for anxiety and major depression, and was under psychiatric care at the time of his discharge.  He was later diagnosed with PTSD.  He served in Iraq and never had any problems before his Iraq tour.  His mental health was not taken into account during court-martial.  He has no doubt that if his mental condition was taken into account, that his discharge would have been honorable. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	18 March 2013 
	b.	Discharge Received:	Bad Conduct Discharge
	c.	Date of Discharge:	23 May 2008
	d.	Reason/Authority/SPD/RE Code:	Court-Martial, Other, AR 635-200, Chapter 3, JJD, 
			RE-4
	e.	Unit of assignment:	HHB, 2nd Bn, 44th ADA, Fort Campbell, KY 
	f.	Current Enlistment Date/Term:	22 October 2002, 3 years
	g.	Current Enlistment Service:	5 years, 7 months, 2 days 
	h.	Total Service:	5 years, 7 months, 2 days 
	i.	Time Lost:	None 
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3 
	l.	Military Occupational Specialty:	14J10, Air Defense Command C41 Computers and 
			Intelligence Tactical Operations Center Enhanced 
			Operator/Maintainer
	m.	GT Score:	100 
	n.	Education:	HS Graduate 
	o.	Overseas Service:	NIF 
	p.	Combat Service:	NIF
	q.	Decorations/Awards:	NDSM; ASR
	r.	Administrative Separation Board: 	No 
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF 
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 22 October 2002, for a period of 3 years.  He was 22 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  There is no record of any overseas assignment. 
The applicant was retained in the Service 945 days for the convenience of the government, per AR 635-200.  Additionally, he was placed on excess leave from 4 August 2005 until 23 May 2008, for a total of 1,024 days.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 14 March 2005, the applicant was found guilty by a special court-martial of wrongfully using marijuana on two separate occasions (040720-040820, 041022-041105) and methamphetamine (040813-040820), and being derelict in the performance of his duties by failing to provide a urine specimen during a urinalysis (041201).  He was sentenced to be discharged with a Bad Conduct Discharge.  

2.  On 4 August 2005, 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 and on 17 April 2007, The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  

3.  On 1 November 2007, the sentence was ordered to be executed.

4.  The applicant was separated from the Army on 23 May 2008, with a bad conduct discharge, separation code of JJD, and a reentry code of 4.

5.  The record reflects he was placed on excess leave for 1,024 days (050804-080523).

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Special Court-Martial Order adjudged on 14 March 2005, which shows the applicant, was found guilty as described in paragraph 1 above.  His punishment consisted of a Bad Conduct Discharge.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two character reference statements, dated 13 August 2012 and 21 August 2012; Post Deployment Health Assessment; ARBA CSA letter dated, 27 July 2012; medical health records; VA Admission record, dated 27 December 2010; Advice of Appellate Rights, dated 17 April 2007; and Court-Martial documents with transcript.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he is currently a full-time student at a community college.  He works hard to do his best. 

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 documents 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 was under psychiatric care at the time of his discharge, later diagnosed with PTSD, and that his mental health condition was not taken into account during court-martial.  The applicant’s service record contains documentation that supports a diagnosis of in-service Post-Traumatic Stress Disorder (PTSD) and that he was being treated by competent medical authority.  However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  

5.  The applicant contends that he is currently enrolled in college as a full-time student.  The applicant’s post-service activities by enrolling in college have been noted as outlined on the application and he is to be commended by his efforts.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that his actions with continuing his education did not overcome the reason for discharge and characterization of service granted.  

6.  The records show the proper discharge and separation authority procedures were followed in this case

7.  In view of the foregoing, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny clemency.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  2 October 2013     Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  Yes (redacted)

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130005593

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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