IN THE CASE OF: Ms. BOARD DATE: 27 March 2015 CASE NUMBER: AR20140004991 ___________________________________________________________________________ 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 her bad conduct discharge characterization of service to general, under honorable conditions. 2. The applicant states, in effect, she served honorably during her first term of service prior to deploying to Iraq. She states, due to the experiences she had in the combat zone, she was affected in a negative way. She states, her actions were not normal for her and the way she returned from deployment clouded the decisions she made. She contends if she would have been treated properly she would be a different individual. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 14 March 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 19 February 2008 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: HHC, Special Troops Battalion, Fort Sam Houston, TX f. Current Enlistment Date/Term: 5 June 2004/6 years g. Current Enlistment Service: 3 years, 8 months, 15 days h. Total Service: 7 years, 6 months, 9 days i. Time Lost: 30 days j. Previous Discharges: DEP, 000811-000927, NA RA, 000928-040604, HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 92A10, Automated Logistics Specialist m. GT Score: 108 n. Education: College Graduate o. Overseas Service: SWA p. Combat Service: Iraq (NIF-0403) q. Decorations/Awards: AGCM, GWOTSM, NPDR, ASR r. Administrative Separation Board: NA s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 2 October 2000, for a period of 4 years. She was 23 years old at the time of entry and a college graduate. She served in Iraq and did not earn any significant awards of valor or achievement. She completed a total of 7 years, 6 months, 9 days active duty service. When her discharge proceedings were initiated, she was serving at Fort Sam Houston, TX. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 7 October 2005, the applicant was found guilty by a special court-martial for the wrongful use of cocaine between 050212-050216, 050516-050520 and being AWOL from 050714-050718. She was sentenced to a reduction to the grade of E-1, confinement for one month, and a bad conduct discharge. 2. On 16 June 2006, 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 May 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 26 October 2007, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 19 February 2008, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. The record also shows 817 days of excess leave from 051125-080219. 5. The applicant’s service record shows she had 30 days of time lost for being AWOL during the periods of 050714-050718 and 051007-051031. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order Number 167, dated 26 October 2007. 2. Special Court-Martial Order Number 4, dated 16 June 2006. 3. Request for Chapter 10 discharge, dated 8 September 2005. On 16 September 2005, the applicant’s request for discharge in lieu of trial by court-martial was disapproved. 4. Two background check (specimen data) sheets reflects the applicant tested positive on two urinalysis tests dated 16 February 2005 and 20 May 2005. The report indicates the test basis for the tests were Inspection Unit (IU) and Rehabilitation Testing (RO). 5. Patient Intake Screening Record, dated 29 March 2005, reflects the applicant was diagnosed with cocaine misuse and enrolled for inpatient treatment. 6. Two CID Reports, dated 11 March 2005 and 26 April 2005, reflects the applicant was the subject of an investigation for wrongful use of cocaine and drugs. 7. There are two positive urinalysis reports contained in the record: a. Inspection Unit (IU), 16 February 2005, benzoylecgonine (BZE) b. Rehabilitation Testing (RO), 20 May 2005, BZE 8. DA Form 458 (Charge Sheet), dated 18 August 2005, reflects the applicant was charged with wrongful use of cocaine (050212-050216 and 050516-050520), wrongful use of Ambien (050103), missing movement of her flight which she was required in the course of duty to move (050714), being AWOL (050714-050718), and the wrongful use of Vicodin (041220-050301). 9. Two DA Forms 4187 (Personnel Action), dated 14 July 2005 and 18 July 2005, changed the applicant’s duty status from present for duty (PDY) to AWOL and AWOL to PDY. 10. Photograph listed as defense exhibit B, shows a picture of the urinalysis test bottle the applicant produced on 20 May 2005. 11. Two NCOERs covering the periods July 2004 through June 2005 and July 2005 through October 2005. The applicant was rated as “Marginal” by her raters and received a “5/5” rating for her “Overall Performance/Overall Potential” by her senior raters. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 25 February 2014, a DD Form 214, two enlistment contracts, Orders Number TF 202-132, Orders Number TF 261-03, a Enlisted Record Brief, dated 18 October 2005, and Special Court-Martial Order Number 167. POST-SERVICE ACTIVITY: The applicant did not provide any in support of her 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 her discharge was carefully considered. However, after examining the applicant’s record of service, her military records, 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 she was not properly treated. However, the evidence in the available record indicates the chain of command attempted to provide assistance to the applicant by referring her for treatment. A Patient Intake Screening Record, dated 29 March 2005, reflects the applicant was diagnosed with cocaine misuse and enrolled for inpatient treatment. 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: 27 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) AR20140004991 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1