IN THE CASE OF: Mr. BOARD DATE: 5 December 2014 CASE NUMBER: AR20140013816 ___________________________________________________________________________ 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 general, under honorable conditions. 2. The applicant states, in effect, he desires to use his veteran benefits to include educational, medical and home loan. He states he is not the same Soldier he used to be, and has changed spiritually and mentally. He states he is no longer using alcohol or drugs, is a NA and AA member and attends church. He states he was given a dishonorable discharge for drug use and his attorney told him only E-5s get put out of the military. He contends he was not offered rehabilitation and that is why he requests a general, under honorable conditions discharge. He states when his incident occurred, there were three Soldiers involved and he was the only one discharged. He earned a certificate of achievement and completed drug classes and a optional substance abuse program as well. He apologizes for his behavior and is requesting help for himself and his family. He states he has contacted the Department of Veteran Affairs for a hearing regarding a monthly check, healthcare, home loan and GI Bill benefits. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 31 July 2014 b. Discharge Received: Bad Conduct c. Date of Discharge: 25 August 2003 d. Reason/Authority/SPD/RE Code: Court-Martial, Other, AR 635-200, Chapter 3 Section IV, JJD, RE-4 e. Unit of assignment: C Battery, 2-11th Field Artillery, Schofield Barracks, HI f. Current Enlistment Date/Term: 26 August 1999/3 years, 2 months (Extended 3-year commitment for 2 months on 990909) g. Current Enlistment Service: 4 years h. Total Service: 14 years, 4 months, 4 days i. Time Lost: NIF j. Previous Discharges: ARNG, 860815-861001, NA AD, 861002-870123, ELS (Concurrent Service) ARNG, 870124-940814, HD Break, 940815-970305, NA ARNG, 970306-990825, HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 13B10, Cannon Crewmember m. GT Score: 63 n. Education: HS Graduate o. Overseas Service: Hawaii p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 26 August 1999, for a period of 3 years. He extended for 2 months to meet the SRR for Hawaii. He was 35 years old at the time of entry, a high school graduate and had served 10 years and 11 days in the Army National Guard. He served in Hawaii. The applicant did not earn any significant awards. He completed a total of 14 years, 4 months, and 4 days of creditable military service. When his discharge proceedings were initiated, he was serving at Fort Sill, Oklahoma. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record shows that on 8 March 2000, the applicant was found guilty by a special court-martial of wrongful use of marijuana, and crack cocaine, wrongful distribution of marijuana and wrongful possession of crack cocaine. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for six months (confinement in excess of three months was suspended for 12 months, with provisions for automatic remission) and forfeiture of $600 pay for six months. He was credited with three days of confinement against the sentence. 2. On 4 January 2001, 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 21 January 2002, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 3. On 20 February 2003, the sentence was ordered to be executed. 4. The applicant was separated from the Army on 25 August 2003, with a bad conduct discharge, separation code of JJD, and a reentry code of 4. 5. The applicant does not reflect any time lost due to being AWOL. However, the applicant’s service record reflects he was declared a deserter and dropped from the rolls on 12 December 2000. His mode of return to military control is unknown. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There is one positive urinalysis report contained in the record: IU, Inspection Unit, 13 February 2000, cocaine 2. Article 15, dated 23 February 2000, for the wrongful use of cocaine. The punishment consisted of a reduction to the grade of E-1, forfeiture of $502 per month for two months, 45 days of extra duty and restriction (FG). The applicant appealed the imposed punishment. On 6 March 2000, his appeal was denied. 3. DA Form 458 (Charge Sheet), dated 23 November 1999, reflects the applicant was charged with wrongful distribution of an unknown amount of marijuana, wrongful use of marijuana and crack cocaine, and wrongful possession of an unknown amount of crack cocaine. 4. CID Investigation, dated 15 November 1999, reflects the applicant was the subject of an investigation for wrongful possession of drug paraphernalia, and wrongful use of cocaine. 5. A counseling statement, dated 15 November 1999, for wrongful use, possession, introduction, purchase, and distribution of a controlled substance. 6. A memorandum, dated 17 December 1999, reflects the applicant voluntarily requested discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. The applicant’s request was disapproved on 22 February 2000. 7. Special Court-Martial Order Number 1, dated 4 January 2001, reflects the applicant was found guilty of violating Article 112a of the UCMJ. 8. Special Court-Martial Order Number 24, dated 20 February 2003, reflects the applicant’s sentence had been affirmed and the bad conduct discharge to be executed. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an undated DD Form 293, two certificates of achievement, a DD Form 214, Special Court-Martial Order Number 24, dated 20 February 2003, and three certificates of completion. POST-SERVICE ACTIVITY: The applicant states he is drug and alcohol free, a member of NA and AA, and attends church. He completed drug classes and an optional substance abuse program. 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 since leaving the Army he is a changed person both spiritually and mentally, does not use drugs or alcohol, is a member of NA and AA, attends church, and completed drug classes and a substance abuse program. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. 5. The applicant desires to use his veteran benefits, to include his medical, educational, and home loan benefits. However, eligibility for veteran's benefits 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. 6. The applicant contends that other Soldiers with similar offenses were not discharged. However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 7. The records show the proper discharge and separation authority procedures were followed in this case 8. 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: 5 December 2014 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) AR20140013816 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1