IN THE CASE OF: Mr. BOARD DATE: 11 August 2014 CASE NUMBER: AR20140009509 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 general, under honorable conditions. 2. The applicant states, in effect, he was diagnosed with schizoaffective disorder on 10 June 2003. He believes he was suffering from this disorder prior to his enlistment for the period or service under review; prior PTSD from Basic training in 1990 and concurrent years of active duty. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 May 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 25 February 2004 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD RE-4 e. Unit of assignment: 170th MP Co, Fort Lewis, WA f. Current Enlistment Date/Term: 18 September 2000, 4 years g. Current Enlistment Service: 2 years, 6 months, 2 days h. Total Service: 9 years, 9 months, 25 days i. Time Lost: 336 days j. Previous Discharges: RA-900725-921211/HD USAR-921212-940522/NA USARCG-940523-971117/NIF (Break-in-Service) k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 91B10, Medical Specialist m. GT Score: 91 n. Education: HS Graduate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record indicates he enlisted in the Regular Army on 25 July 1990, for a period of 2 years and 20 weeks. He was 18 years old at the time of entry and a high school graduate. He was discharged from active duty on 11 December 1992 and assigned to a United States Army Reserve (USAR) unit. On 23 May 1994 the applicant was reassigned to the USAR Control Group until 17 November 1997 (his reserve obligation term date). After a break in service the applicant reenlisted in the Regular Army on 18 September 2000, for a period of 4 years. His record indicates he served in Korea and achieved the rank of SPC/E-4. His record documents no acts of valor or significant achievements. Based on documents and information taken from the record it appears the applicant completed 9 years, 9 months and 25 days of total military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows on 25 October 2001, the applicant was found guilty by a special court-martial for desertion after going AWOL from 8 February 2001 until on or about 2 October 2001. 2. He was sentenced to a Bad Conduct Discharge, confinement for one hundred and sixty-five (165) days, and forfeiture of $695.00 pay per month for five months. 3. On 17 April 2002, only so much of the sentence as provides for forfeiture of $695.00 pay per month for five (5) months, confinement for four (4) months, and a bad conduct discharge was approved, and except for the part of the sentence extending to a bad conduct discharge was ordered to be executed. The applicant was credited with twenty-four (24) days of pretrial confinement credit against the approved sentence to confinement. 4. The record of trial was forwarded to The Judge Advocated General of The Army for review by the Court of Military Review. On 16 October 2003, the Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. The portion of the sentence extending to the confinement had been served. 5. The applicant was separated from the Army on 25 February 2004, with a bad conduct discharge, a separation code of JJD, and a reentry code of 4. 6. The applicant’s service record shows he had 336 days of lost time; 237 days for going AWOL from 8 February 2001 until his return 2 October 2001; and 99 days for being confined by the military authorities 4 October 2001 until 11 January 2002; as a result of being placed in pre-trial confinement pending court-martial and court-martial sentencing. The DD Form 214 under review also shows the applicant had 764 days of excess leave 23 January 2002 until 25 February 2004. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Incomplete charge sheet, dated 6 March 2001, for desertion 8 February 2001 until an unknown dated. 2. Two DA Form's 4187 (Personnel Action) which changed the applicant's duty status from present for duty to absent without leave and absent without leave to dropped from the rolls. 3. A report of return of absentee (DD Form 616), indicating the applicant was apprehended 2 October 2001 after going AWOL 8 February 2001. 4. Special Court-Martial Order, dated 17 April 2002, which shows the applicant, was found guilty of desertion after going AWOL 8 February 2001 which was terminated by apprehension on or about 2 October 2001. His punishment consisted of a Bad Conduct Discharge, confinement for one hundred and sixty-five (165) days, and forfeiture of $695.00 pay per month for five months. Also that only so much of the sentence as provides for forfeiture of $695.00 pay per month for five (5) months, confinement for four (4) months, and a bad conduct discharge was approved, and except for the part of the sentence extending to a bad conduct discharge was ordered to be executed. The applicant was credited with twenty-four (24) days of pretrial confinement credit against the approved sentence to confinement. 5. Special Court-Martial Order dated 16 October 2003, which ordered the portion of the sentence extending to the bad conduct discharge to be executed. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, dated 22 May 2014, copy of his enlistment orders, dated 18 September 2000, order to plead guilty, dated 15 October 2001, a copy of his medical report from 402B from the Department of Social Services, medical documents from Prince George's Hospital Center, dated 21 June 2003 and 23 May 2005, QCI behavioral health initial interview, dated 1 June 2005, medical record, dated 12 September 2005, inmate release order, dated 11 January 2002, request and authority for leave, dated 19 December 2001, reassignment order, dated 11 February 2004, and a progress note, dated 19 February 2014. 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, 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 diagnosed with Schizoaffective disorder on 10 June 2003 and believes he was suffering from this disorder prior to his enlistment for the period or service under review; prior PTSD from Basic training in 1990 and concurrent years of active duty. The independent medical documents submitted by the applicant were noted in reference to his diagnosis of having a schizoaffective disorder. However, 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. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his misconduct was the result of a medical condition. The applicant’s statements alone does 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. Furthermore, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 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, the analyst recommends the Board deny clemency. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 11 August 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: No DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted no additional documents or issues. 2. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. 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) AR20140009509 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1