IN THE CASE OF: Mr. BOARD DATE: 21 January 2015 CASE NUMBER: AR20140002338 ___________________________________________________________________________ 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 to honorable or general, under honorable conditions. 2. The applicant states, in effect, he served honorably for his first enlistment and reenlisted to deploy with his unit to Iraq. He earned many awards and had a average score of 300 on the Army Physical Fitness Test. He contends his discharge did not involve the war. He did not present any issues of equity or propriety in his application. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 31 January 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 31 May 2010 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: 4th Quartermaster Detachment (Airborne), Fort Richardson, AK f. Current Enlistment Date/Term: 9 March 2004/5 years g. Current Enlistment Service: 6 years, 2 months, 23 days h. Total Service: 10 years, 11 months, 25 days i. Time Lost: 702 days j. Previous Discharges: ARNG, 990607-991026, NA IADT, 991027-000425, HD ARNG, 000426-010709, HD RA, 010710-040308, HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92A10, Automated Logistical Specialist m. GT Score: 89 n. Education: GED o. Overseas Service: Korea, SWA p. Combat Service: Iraq, 050303-060305 q. Decorations/Awards: ARCOM-2, AGCM-2, GWOTEM, GWOTSM, KDSM, ASR, OSR-2 r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army National Guard on 7 June 1999, for a period of 8 years. He was 25 years old at the time of entry and had a General Equivalency Diploma (GED). He reenlisted in the Regular Army on 10 July 2001 and again on 9 March 2004, for a period of 5 years. He served in Iraq and Korea and earned two ARCOMs. He completed a total of 10 years, 11 months, 25 days of creditable military service. When his discharge proceedings were initiated, he was serving in Fort Richardson, AK. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 31 October 2008, the applicant was found guilty by a special court-martial of being AWOL (071016-080918), and wrongfully using oxycodone and oxymorphone on 18 August 2007. He was sentenced to a reduction to the grade of E-1, forfeiture of $800 per month for four months, confinement of four months, and a Bad Conduct Discharge. 2. On 23 February 2009, 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 24 November 2009, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 29 April 2010, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 31 May 2010, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. 5. The applicant’s service record shows he had 702 days of time lost for being AWOL (071016-080918). The record also shows 483 days of excess leave (090203-100531). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are three positive urinalysis reports contained in the record: IR, Inspection Random, 18 September 2007, oxycodone and oxymorphone IU, Inspection Unit, 18 June 2007, marijuana IR, Inspection Random, 4 June 2007, marijuana 2. A MP Report, dated 26 June 2007, reflects the applicant was the subject of an investigation for use of marijuana. The applicant was referred for drug and alcohol abuse on 21 June 2007. 3. Several DA Forms 4187 (Personnel Action), dated between 17 October 2007 and 18 September 2008, reflects a change in the applicant’s duty status. 4. A MP Report, dated 17 October 2007, reflects the applicant was charged with being AWOL and desertion. 5. A CID Report, dated 17 October 2007, reflects the applicant was the subject of an investigation for wrongful possession and use of drugs. 6. DA Form 458 (Charge Sheet), dated 1 October 2008, for being AWOL from 16 October 2007 and remaining so in desertion until 19 September 2008, and wrongful use of oxycodone and oxymorphone. 7. Special Court-Martial Order Number 30, dated 29 April 2010, ordered the Bad Conduct Discharge to be executed. 8. Special Court-Martial Order Number 1, dated 23 February 2009, found the applicant guilty of all charges and sentenced him to a reduction to the grade of E-1, forfeiture of $800 pay per month for four months, four months confinement, and a Bad Conduct Discharge. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and 149, dated 30 December 2013, with all listed enclosures, a DD Form 214, enlistment and reenlistment contracts, a DD Form 553, three DA Forms 4187, two DD Forms 616, USADIP Forms 85 and 225-R, DD Form 458, Orders Number 308-301, dated 3 November 2008, a Enlisted Record Brief, Special Court-Martial Order Number 30, dated 29 April 2010, Special Court-Martial Order Number 1, dated 23 February 2009, and DD Form 2718. 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, 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 completed his first enlistment with honor, reenlisted to serve in Iraq, and his discharge did not involve the war. 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 his characterization of discharge as shown by his court-martial for being AWOL and remaining so in desertion and multiple positive urinalysis reports for illegal drug use. 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: 21 January 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) AR20140002338 Page 5 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1