IN THE CASE OF: Mr. BOARD DATE: 1 October 2014 CASE NUMBER: AR20140013169 ___________________________________________________________________________ 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. 2. The applicant states, in effect, that he was diagnosed with Post Traumatic Stress Disorder (PTSD). He contends he got in trouble during his medical board because he was suffering from PTSD and was not in good condition when he returned from Afghanistan. He states he has not fully recovered. He contends he was told his discharge would be upgraded after six months. He states he believes his service was honorable and he had a difficult time adjusting after returning from Afghanistan. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 22 July 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 3 December 2010 d. Reason/Authority/SPD/RE Code: Court-Martial (Other), AR 635-200, Chapter 3, JJD, RE-4 e. Unit of assignment: HHC 296th BSB Fort Lewis, WA f. Current Enlistment Date/Term: 12 August 2004/4 years, 22 weeks g. Current Enlistment Service: 5 years, 10 months, 29 days h. Total Service: 5 years, 11 months, 12 days i. Time Lost: 143 days j. Previous Discharges: DEP, 040729-040811, NA k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92G10, Food Service Operations m. GT Score: 105 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (070102-080123) q. Decorations/Awards: ARCOM, AGCM, NDSM, ACM-2CS, GWOTSM, ASR, OSR r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 12 August 2004, for a period of 4 years and 22 weeks. He was 22 years old at the time of entry and a high school graduate. He served in Afghanistan and earned an ARCOM. He completed 5 years, 11 months, and 12 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Lewis, Washington. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 16 December 2009, the applicant was found guilty by a special court-martial of wrongful distribution of a controlled substance and two specifications of wrongful possession of a controlled substance. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for six months, forfeiture of $933 pay per month for six months, and a reduction to the pay grade of E-1. 2. On 24 March 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 and on 13 May 2010, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 27 August 2010, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 3 December 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 143 days of time lost from 16 December 2009 until 8 May 2010. The record also shows 179 days of excess leave from 8 June 2010 to 3 December 2010. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order Number 121, dated 27 August 2010, ordered the Bad Conduct Discharge be executed. The Order shows the applicant was sentenced to a reduction to the grade of E-1, forfeiture of $933 per month for one month, confinement for six months, and a bad conduct discharge. 2. A Pre-Trial Agreement, dated 4 November 2009, reflects the applicant agreed to plead guilty to wrongful distribution and possession of a controlled substance. 3. Several CID investigations dated between 10 December 2008 and 19 March 2009, reflects the applicant as the subject of an investigation for wrongful possession of hallucinogens with intent to distribute, wrongful distribution of hallucinogens, and conspiracy. 4. Special Court-Martial Order Number 4, dated 24 March 2010, reflects the applicant pled guilty to wrongful distribution of a controlled substance and two specifications of wrongful possession of a controlled substance. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and DD Form 149, dated 16 July 2014, two DD Forms 214 covering the period of service under review, Special Court-Martial Order Number 121, dated 27 August 2010, a psychiatric report from Madigan Army Medical Center, Tacoma, WA, dated 14 December 2009, reflects a PTSD diagnosis and Adult Attention Deficit Disorder, five physical profiles, an excerpt from his court-martial, Army Substance Abuse Program Treatment Status Report, dated 30 November 2009, a chronological record of care, dated 29 September 2009, reflects the applicant had an adjustment disorder with anxiety and depressed mood, a self-authored statement dated 25 February 2010, and 10 letters of support dated between 21 July 2009 and 16 March 2010. POST-SERVICE ACTIVITY: The applicant did not provide any with 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 incident 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 got in trouble during his medical board because he was suffering from PTSD and was not in good condition when he returned from Afghanistan. The applicant’s service record contains documentation that supports a diagnosis of in service PTSD; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted. The record shows that the applicant was enrolled in an psychiatry intensive outpatient program since September 2009, and underwent a full psychiatric evaluation. He was diagnosed with PTSD and AADD. It appears the applicant’s chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong. Further, there are many Soldiers with the same condition that completed their service successfully 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: 1 October 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: None 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: 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) AR20140013169 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1