IN THE CASE OF: Mr. BOARD DATE: 11 August 2014 CASE NUMBER: AR20140009375 ___________________________________________________________________________ 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 that clemency is warranted based on the applicant’s length and quality of service to include his combat service and the circumstances surrounding his medical condition that affected his behavior and led to his discharge, and as a result it is inequitable. Accordingly, the Board voted to grant partial relief by upgrading the applicant’s characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. This action entails restoration of Grade/Rank to SGT/E-5. 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 to upgrade the characterization of his service from bad conduct to fully honorable, and to change the narrative reason for his discharge. 2. The counsel for the applicant, by reasons of propriety and equity petitions, in pertinent part and in effect, to consider the applicant’s heartbreaking case according to his self-authored statement and his suffering, contributions to his country, and his current efforts to better himself and help those who suffer around him. An upgrade to honorable, pursuant to Chapter 5-17 (convenience of the Government) with an RE Code would allow him to receive treatment at the VA for his service-connected injuries. The applicant suffered and continues to suffer from PTSD after his service in Iraq. The applicant, since his discharge, became a counselor and a co-creator of the “Ride for Recovery Program” to assist injured Soldiers. He has also joined the military ministry, and travels and speaks to individuals or groups about PTSD to help other suffering Soldiers. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 May 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 2 April 2009 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: HHC, BSTB, 4th Bde, 10th Mountain Division (Light), Fort Polk, LA and SPC, USAPCF, Fort Knox, KY f. Current Enlistment Date/Term: 31 May 2004, 4 years g. Current Enlistment Service: 3 years, 8 months, 25 day h. Total Service: 7 years, 1 months, 30 days, approximately i. Time Lost: 402 days j. Previous Discharges: RA (020418-040530) / HD (contract NIF) k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: NIF n. Education: HS Graduate or GED (NIF) o. Overseas Service: Germany, SWA (NIF) p. Combat Service: NIF q. Decorations/Awards: ARCOM-2; AAM; AGCM; GWOTSM; ASR; OSR r. Administrative Separation Board: No s. Performance Ratings: NIF t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant’s initial entry into military service is not available; however, his AGCM orders indicate a beginning date 18 April 2002, and the charge sheet and the SJA’s recommendation in the applicant’s SPCM-BCD case indicate the applicant enlisted on 14 November 2002. The available record shows the applicant reenlisted in the Regular Army on 31 May 2004, for a period of 4 years. He was 22 years old at the time of his reenlistment. There is also no record on the level of his education. He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. He served in Iraq. He earned two ARCOM and an AAM awards. He completed approximately 7 years, 1 month, and 30 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 18 October 2006, the applicant was found guilty by a special court-martial, empowered to adjudge a bad conduct discharge of the following charges and their specifications: a. violation of Article 86, UCMJ, for being AWOL (060419) until he was apprehended on (060714); b. violation of Article 86, UCMJ, for being AWOL (050913-060409); c. six specifications of violating Article 112a, UCMJ, for wrongfully using cocaine (060408-060411and 060611-060714), wrongfully using marijuana (060311-060411 and 060614-060714), wrongfully using ecstasy (060611-060714), and wrongfully using methamphetamines (060611-060714). He was sentenced to be discharged with a bad conduct discharge, confinement for 180 days, forfeiture of $849 per month for six months, and reduction to E-1. 2. On 6 April 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 28 April 2008, the approved findings of guilty and the sentence was affirmed. 3. On 18 September 2008, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 2 April 2009, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. 5. The applicant’s service record shows he had 402 days of time lost for being AWOL (13 September 2005 until he surrendered to military authorities on 10 April 2006), (19 April 2006 until he was apprehended by civil authorities on 11 July 2006), and for being in military confinement from 11 July 2006 through 28 October 2006). The record also shows 887 days of excess leave (from 29 October 2006 through 2 April 2009). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order Number 178, dated 18 September 2008, announced the affirmation of the court-martial sentence by the appellate review and ordered the bad-conduct discharge to be executed. 2. DA Form 4187, Personnel Action, dated 3 November 2006, indicates the applicant’s duty status changed from confined by military authorities to PDY, effective 29 October 2006. 3. DA Form 4187, Personnel Action, dated 3 November 2006, indicates the applicant’s duty status changed from PDY to being confined by military authorities, effective 11 July 2006. 4. DD Form 616, Report of Return of Absentee, dated 12 July 2006, indicates the applicant was apprehended by civil authorities on 12 July 2006. The report included a charge sheet with a preferral date of 19 May 2006, indicates the applicant was charged with desertion (060419). 5. DD Form 616, Report of Return of Absentee, dated 14 June 2006, indicates the applicant surrendered to military authorities on 9 April 2006. The report included a charge sheet with a preferral date of 10 October 2005, indicates the applicant was charged with desertion (050912). 6. Memorandum for Record, dated 1 April 2009, subject: Missing Documents, indicates the unit was unable to obtain two records of DA Form 4187, which changed the applicant’s status from DFR to PDY on two separate occasions, effective 9 April 2006 and 10 July 2006. 7. DA Form 4187, Personnel Action, dated 19 May 2006, indicates the applicant’s duty status changed from AWOL to DFR, effective 19 May 2006. 8. DA Form 4187, Personnel Action, dated 19 April 2006, indicates the applicant’s duty status changed from PDY to AWOL, effective 19 April 2006. 9. DA Form 4187, Personnel Action, dated 19 October 2005, indicates the applicant’s duty status changed from AWOL to DFR, effective 20 October 2005. 10. DA Form 4187, Personnel Action, dated 13 September 2005, indicates the applicant’s duty status changed from PDY to AWOL, effective 13 September 2005. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided Special Court-Martial Order Number 178, dated 18 September 2008; counsel’s brief; applicant’s self-authored statement; post deployment health reassessment, policy, and information documents, including DoDI 6490.12; ASAP questionnaire, dated 28 July 2006, and appointment for 12-13 September 2005, dated 4 August 2005; SJA pretrial advice; Chapter 10 request and denial, dated 4 October 2006; trial defense services memorandum, dated 4 October 2006; Record of Trial cover sheet, dated 18 October 2006; SJA’s recommendation in the BCD case, dated 7 March 2007; news report on “Ride for Recovery”; brain scans; medical evaluation report of 23 June 2009; Beta testing; Medical treatment summary, dated 26 November 2013; SSG I’s letter to applicant’s parents, dated 15 October 2003; six letters of support; military awards and certificates (PLDC leadership recipient, dated 24 June 2005; certificate of training in March and April 2003; airborne diploma; Spartans CAB certificate, dated 26 September 2003; ARCOM certificates with recommendations for award for period 12 May 2003 to 12 May 2004 and 15 April 2004 to 15 July 2004, respectively; AGCM certificate for period 18 April 2002 to 17 April 2005; AAM certificate for period 13 September 2002 to 15 November 2004; honorable discharge certificate, dated 30 May 2004; two JROTC certificate, dated 17 August 1998 and 1 June 1996; and infantry training diploma); 2006 and 2007 NPR articles; and SPC Cherry news article. POST-SERVICE ACTIVITY: The applicant states, in effect, he became a counselor and a co-creator of the “Ride for Recovery Program” to assist injured Soldiers. He has also joined the military ministry, and travels and speaks to individuals or groups about PTSD to help other suffering Soldiers. 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 and to change the narrative reason for his discharge was carefully considered. 2. After examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions, for the following reasons: a. Overall length and quality of his service. The applicant served over seven years of active duty service. b. He served a combat tour in Iraq. c. He earned an two ARCOM awards during his combat tour and an AAM. d. The circumstances surrounding the events that led to his discharge and his current medical situation with PTSD. e. Character references lauding his conduct since his discharge and letters of support reflecting his otherwise post-service achievements. f. Post service accomplishments indicate he became a counselor and a co-creator of the “Ride for Recovery Program” to assist injured Soldiers, and subsequently becoming a member of the military ministry, and traveling and speaking to individuals or groups about PTSD, while helping other suffering Soldiers. 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 the narrative reason for the discharge and its RE-code should also be changed. However, the applicant was separated under the provisions of Chapter 3, AR 635-200 with a bad conduct discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Court-Martial, Other," and the separation code is "JJD." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. Furthermore, a change in the reason for the applicant’s discharge is not authorized under Federal statute. Regarding a change to the RE-code, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE Code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 5. The records show the proper discharge and separation authority procedures were followed in this case. 6. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief 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: 11 August 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes [redacted] Witnesses/Observers: Ms. [redacted] - wife – (W); Mr. [redacted] – friend - (W) DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Original Post Deployment Screening – 4 pages b. Letter of Reference – [redacted] – 1 page c. Letter of Reference – Maj (Ret) [redacted] – 2 pages d. Letter of Reference – MG USA (Ret) [redacted] – 1 page e. Medical documents brain scan – 4 pages 2. The applicant presented the additional issue: a. Change narrative reason to ‘Secretarial Authority’ In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 4 No Change: 1 Reason Change: 0 No Change: 5 (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: NA Change RE Code to: NA Grade Restoration to: SGT/E-5 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) AR20140009375 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1