IN THE CASE OF: Mr. BOARD DATE: 11 March 2015 CASE NUMBER: AR20140004787 ___________________________________________________________________________ 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 an upgrade of his bad conduct discharge characterization to general, under honorable conditions. 2. The applicant states, in effect, he is currently being treated for a mental health diagnosis for events he experienced while serving in Kosovo prior to his separation. He does not present any issues of propriety or equity for the Board to consider. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 March 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 18 October 2002 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: HHC, 2nd Battalion, 504th Parachute Infantry Regiment, Fort Bragg, NC f. Current Enlistment Date/Term: 21 July 1998/4 years g. Current Enlistment Service: 2 years, 7 months, 28 days h. Total Service: 2 years, 7 months, 28 days i. Time Lost: 566 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 110 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 21 July 1998, for a period of 4 years. He was 19 years old at the time of entry and a high school graduate. His record is void of any significant acts of valor or achievement. He completed 2 years, 7 months, 28 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Knox, KY. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 11 July 2000, the applicant was found guilty by a general court-martial of the following offenses: a. resisting apprehension, damaging military property, drunken operation of a motor vehicle, reckless operation of a motor vehicle, assaulting a law enforcement officer x 3, and wrongful and reckless conduct like to cause death or bodily harm x 2 (000421), b. wrongful use of marijuana (000124 and 000223) and c. wrongful possession of a false military identification card and breaking restriction (000220). He was sentenced to be discharged with a bad conduct discharge, confinement for 24 months and forfeiture of all pay and allowances. 2. On 13 October 2000, 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 9 February 2001, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 17 July 2002, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 18 October 2002, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. The record reflects 340 days of excess leave from 13 November 2001 through 18 October 2002. 5. The applicant’s service record shows he had 566 days of time lost for being AWOL from 22 April 2000 through 10 July 2000 and from 11 July 2000 through 12 November 2001. His mode of return is unknown. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Report of Result of Trial, dated 11 July 2000, reflects the applicant was found guilty by a general court-martial of all charges and specifications. 2. General Court-Martial Order Number 105, dated 17 July 2002, affirmed the applicant’s sentence of a bad conduct discharge, 24 months confinement, and forfeiture of all pay and allowances adjudged on 11 July 2000. 3. General Court-Martial Order Number 26, dated 13 October 2000, reflects the applicant’s guilty pleas and findings. 4. Two Offers to Plead Guilty, dated 13 June 2000 and 23 June 2000, reflects the applicant offered to plead guilty to the offenses on the condition he receive no sentence in excess of a bad conduct discharge, 24 months confinement and forfeiture of all pay and allowances. The applicant’s offer was accepted 23 August 2000. 5. Three negative counseling statements, dated 12 January 2000, 20 January 2000 and 6 March 2000, for restriction violation, unprofessional behavior, insubordination, indebtedness, failure to obey an order, and failure to report. 6. There is one positive urinalysis report in the record: US, Unit Sweep, 23 February 2000, marijuana 7. A MP Report, dated 21 April 2000, reflects the applicant was the subject of an investigation for a traffic accident, impaired driving, damage to private property, destruction of government property, indecent exposure, disorderly conduct, resisting, delaying, and obstructing a police officer, assaulting a law enforcement officer, driving on a suspended drivers license, and careless and reckless manner. 8. DA Form 458 (Charge Sheet), dated 25 May 2000, reflects the applicant was charged with resisting apprehension, destroying military property, physically controlling a vehicle while drunk, reckless driving, wrongful use of marijuana, assaulting a military police officer x 3, wrongful possession of a military identification card, breaking restriction, and reckless conduct likely to cause death or bodily harm. 9. Article 15, dated 21 January 2000, for being AWOL from 1 November 1999 until 9 December 1999. The punishment consisted of a reduction to the grade of E-1, forfeiture of $503 pay per month for two months, and 45 days extra duty and restriction (FG). EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 21 February 2014 and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his 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 he suffers from mental health issues attributed to his time served in the military. However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. Further, the applicant’s statements alone do not overcome the government’s 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. 5. The records show the proper discharge and separation authority procedures were followed in this case 6. 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: 11 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) AR20140004787 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1