IN THE CASE OF: Mr. BOARD DATE: 10 April 2015 CASE NUMBER: AR20140003586 ___________________________________________________________________________ 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 his bad conduct discharge be upgraded to either a general, under honorable conditions or an honorable discharge. 2. The applicant states, in effect, he has submitted an explanation surrounding the charges he received that led to his discharge in a five page self-authored letter. The applicant contends his entire contract is void because his recruiter falsified documents and provided a false statement to get him into the military. He contends that he was a drug user prior to entering the military and with the help of someone else’s urine provided by his recruiter allowed him entry. All of his leadership was aware of his drug use and instead of getting him in a drug program to help him; some of them provided him with drugs. He stole military property, three televisions and sold them to support his drug habit. However he contends, he is clean and no longer uses drugs. He wants to better himself by going back to school and work but, he cannot because of his bad conduct discharge. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 February 2014 b. Discharge Received: Bad Conduct Discharge c. Date of Discharge: 30 September 2011 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: Department of the Army, Headquarters, Fort Stewart, Fort Stewart, GA f. Current Enlistment Date/Term: 14 August 2008, 3 years, 9 weeks g. Current Enlistment Service: 2 years, 11 months, 1 days h. Total Service: 3 years, 8 months, 26 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 100 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, ASR,GWOTSM r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 11 January 2007, for a period of 3 years, 9 weeks. He was19 years old at the time and a high school graduate. The record does not contain any evidence of acts of valor or meritorious achievement. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 24 June 2010, the applicant was found guilty by a special court-martial for the below charges. He was sentence to be discharged with a Bad conduct discharge, forfeit $964.00 pay per month for 6 months and confined for 6 months. a. absent himself from his unit (100205-100209 and 100401-100402) b. disrespect to a superior commissioned officer (100412) c. wrongfully posses some amount of marijuana (100126) d. wrongfully used marijuana (091227-100127) e. stealing two Sanyo Televisions, military property at a value of less than $500.00 (100315-100327) and, f. stealing a View Sonic Television, military property, a value greater than $500.00. 2. On 23 November 2010, 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. On 16 February 2011, The United States Army Court of Military Criminal Appeals affirmed the approved findings of guilty and the sentence. 3. On 11 August 2011, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order adjudged on 23 November 2010, which shows the applicant, was found guilty on six charges as listed above. His punishment consisted of a Bad Conduct Discharge, confinement for 6 months, forfeiture of pay in the amount of $964.00 pay per month for 6 months and confinement for 6 months. 2. DA Form 4187s indicated the applicant was confined at Fort Sill Regional Correctional Facility (RCF) for sentence (100624) then later released from confinement upon completion of sentence (100903). EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 293s, dated 8 February 2014; an undated five page self-authored letter; DD 214; enlisted record brief (ERB), dated 27 August 2010; the special court-martial proceedings, dated 23 November 2010; a veterans referral form from the United Methodist Community Center; several character reference letters that spoke highly of the applicant; and, a copy of Compass Family and Community Service, dated 12 September 2013. POST-SERVICE ACTIVITY: The applicant did not provide any 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, 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 contention concerning his entire contract is void because his recruiter falsified documents and provided a false statement were carefully considered. Since, the applicant knew that recruiter used another person’s urine he knew the recruiter was acting unethical. However, the applicant did not submit any evidence to support his claim. The burden of proof remains with the applicant to provide the appropriate documents or other evidence sufficient to explain the facts and circumstances to support his contentions. 5. The applicant contends that he was a drug user prior to entering the military and his recruiter used someone else’s urine to get him in the military. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge. 6. The applicant contends he stole the military property to sell in order to support his drug habit. The applicant’s bad conduct was not consistent with the Army’s standards. The applicant’s consistent act of bad conduct diminished that quality of his service and bought discredit on the Army, and was prejudicial to good order and discipline. 7. The applicant contends that he no longer uses drugs and desires the opportunity to better himself by going back to school and finding employment but, he cannot because of his bad conduct discharge. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 8. The records show the proper discharge and separation authority procedures were followed in this case 9. 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: 10 April 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 0 No Change: 5 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change Change Reason to: No Change 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) AR20140003586 Page 4 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1