IN THE CASE OF: BOARD DATE: 8 December 2014 CASE NUMBER: AR20140013428 ___________________________________________________________________________ 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 the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, and as a result it is inequitable. Accordingly, the Board voted to grant partial clemency in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board further determined the reason for discharge was both proper and equitable and voted not to change it. 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 to his bad conduct discharge. 2. The applicant states, in effect, the bad conduct discharge was not warranted. The applicant contends he made bad decisions as a result of PTSD. The applicant contends that he could not find qualified help when he needed it the most. The applicant states he regrets his decisions and had he been mentally healthy, would not have made those decisions. The applicant contends that he excelled in all duties assigned to him while he served in the military and earned respect from his chain of command. The applicant contends upon returning from the combat zone he sought help; however, there was no qualified help available. He states that since his discharge, he has continued with his life pursing educational goals and being a responsible citizen. The applicant contends the decisions he has made during that time in his life are not a true reflection of his character. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 28 July 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 24 July 2009 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3 JJD, RE-4 e. Unit of assignment: C Company, 84th Engineer Battalion, Fort Richardson, Alaska f. Current Enlistment Date/Term: 26 May 2005/4 years g. Current Enlistment Service: 3 years, 4 months, 17 days h. Total Service: 3 years, 4 months, 17 days i. Time Lost: 282 days j. Previous Discharges: DEP, 050423-050525, NA k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 21E10, Construction Equipment Operator m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (051210-061129) q. Decorations/Awards: AAM, NDSM, GWOTSM, ICM-CS, ASR r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: No u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 26 May 2005, for a period of 4 years. He was 22 years old at the time of entry and a high school graduate. He served in Iraq, earned an AAM, and completed 3 years, 4 months, and 17 days of active duty service. When his discharge proceedings were initiated, he was serving in Fort Richardson, Alaska. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 14 September 2007, the applicant was found guilty by a special court-martial of wrongful use of cocaine (070315); stole property of a value greater than $500, the property of SPC WM (070505-070506, 070512); and, wrongful use of marijuana (070519). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 350 days, forfeiture of $867.00 per month for 12 months, and reduction to E-1. 2. On 7 November 2007, 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 29 November 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 20 December 2007, the sentence was ordered to be executed. 4. On 24 July 2009, the applicant was released from confinement. He was placed on excess leave for 388 days (080702-090724). 5. The applicant was separated from the Army on 24 July 2009, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Special Court-Martial Order Number 6 adjudged on 14 September 2007, which shows the applicant, was found guilty as described in paragraph 1 above. His punishment consisted of reduction to the grade of Private (E-1), forfeiture of $867.00 per month for 12 months, confined for 300 hundred and 50 (350) days, and to be separated from the service with a Bad Conduct discharge. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided four character letters, dated between 22 January 2014 and 21 February 2014, from members of his family, a college professor, and his apartment manager. Letters state the applicant is an upstanding citizen, respectful individual, and always willing to help others. 2. Self-authored statement, dated 11 January 2012, detailing his time in the Army and post service. The applicant acknowledges he’s made mistakes, he’s worked very hard to get where he’s at, and spent time in the military serving this great country. He states he is now dealing with PTSD and numerous bodily injuries, with no insurance, money, or any kind of benefits to help offset medical costs. 3. Additional character statements, dated 21 April 2007 and 25 April 2007, from the applicant’s father and former platoon leader states the applicant’s altered attitude and behavior dramatically changed post deployment. According to the statements, the applicant’s behavior prior to deployment was always positive, continuously displaying leadership qualities. The applicant’s father’s statement note the applicant’s behavior post deployment as being frustrated, depressed, and stressed. 4. VA Inquiry, dated 6 July 2007, alerted the applicant’s company commander of investigation into the potential psychological abuse, maltreatment, and lack of comprehensive medical care the applicant was experiencing at Fort Richardson. 5. Memorandum, dated 25 July 2007, US Army Trial Defense Counsel, request for Chapter 10 Discharge in lieu of Court Martial. Basis for the request is the applicant’s untreated PTSD and the inadequate mental health care available in the Anchorage area. 6. The applicant provided the following medical documents: a. Alaska Psychiatric Institute Discharge Release Order, dated 13 April 2007, b. DA Form 4700 (Medical Record Supplemental Medical Data), dated 27 April 2007, c. Alaska Psychiatric Institute (API), Hospital Record, dated June 2007, d. New York State Office of Temporary and Disability Assistance, dated 25 October 2012, e. Warren General Discharge Information Sheet, dated 10 November 2012, and 7. Certificate of Baptism, dated 11 May 2008, applicant was baptized while in confinement. POST-SERVICE ACTIVITY: 1. Colorado Technical University professional certificates completed: a. Project Planning, Undergraduate Level, August 2009, b. Business Fundamentals, Undergraduate Level, August 2009, c. Human Resource Development, Undergraduate Level, December 2009, and d. Basics of Accounting, Undergraduate Level, December 2009. 2. WCA Hospital Certificate of Achievement, dated 10 June 2012, applicant successfully completed the Chemical Dependency Program. 3. Erie Community College State University of New York, Dean’s List Award, applicant achieved academic excellence during the 2013 Spring semester. 4. Occupational Safety and Health Administration (OSHA), dated 7 October 2013, completed the 10-hour OSHA Training Course in Construction Safety and Health. 5. Ferris State University Certificate of Completion, dated 2 January 2014, applicant attained certification as a Type I Technician. 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. 2. After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit clemency with an upgrade of the applicant's discharge to general for the following reasons: a. Overall length and quality of his service. The applicant served for over three years of a four year enlistment. b. He served a combat tour in Iraq and earned an AAM. c. Post service accomplishments, he attained professional certifications from several educational institutions and OSHA, achieved academic excellence, and successfully completed chcollege and currently works at the Veterans Administration as a counselor for wounded warriors. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 4. The applicant contends he made bad decisions as a result of PTSD; he was unable to find qualified help when he needed it the most, and had he been mentally healthy, he would not have made those decisions. The evidence indicate the final diagnosis (Axis I) rule out PTSD with the statement, “the patient does meet criteria for this and that he had situations in Iraq where he was in fear of his life on over 100 occasions” (API, pg 3 of 4). In addition, the prognosis states, “the patient’s clear areas of being confused and almost disoriented at the time could indicate that he has a more severe form of PTSD” (API, pg 4 of 4). Although the service record contains no evidence of a diagnosis of Post-Traumatic Stress Disorder, the evidence indicates the applicant’s “increased discomfort in several areas of depression and anxiety would be constant with PTSD” (API, pg 3 of 4). 5. The applicant contends he excelled in all duties assigned to him while he served in the military and earned respect from his chain of command. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct. 6. The applicant contends upon returning from the combat zone he sought help; however, there was no qualified help available. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 7. The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 8. The records show the proper discharge and separation authority procedures were followed in this case. 9. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant clemency in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 8 December 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: Yes Board Vote: Character Change: 5 No Change: 0 Reason Change: NA No Change: NA (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: General, Under Honorable Conditions Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change 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) AR20140013428 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1