1. Applicant’s Name: a. Application Date: 6 July 2015 b. Date Received: 13 July 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of his discharge from bad conduct discharge to honorable. The applicant seeks relief contending, in effect, he was wrongfully discharged because the drug paraphernalia found on him did not belong to him. The subsequent urinalysis returned negative for drugs. He does not deny making some mistakes but feels he does not deserve a bad conduct discharge. His first sergeant, who was racist and jealous of him, would do anything to separate him from the Army. He was able to reenlist on two occasions with two honorable discharges. He was an Olympic hopeful for being on the boxing team and he would never have given up his military career over something such as drugs. His loyalty to his fellow Soldiers was probably the wrong decision, and being young and inexperienced, he did not fully understand the ramifications until it was too late. An upgrade would enable him to qualify for VA benefits as he has disabilities that resulted from his active duty service. In a personal appearance hearing conducted at Arlington, VA on 6 June 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 4 November 2005 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 37, dated 13 September 1984, on 24 July 1984, the applicant was found guilty of the following charges: Charge I: Violation of Article 92, UCMJ, for violating a lawful general regulation by wrongfully having in his possession drug abuse paraphernalia on 18 May 1984. Charge II: Violation of Article 134, UCMJ, for wrongfully possessing some amount of heroin on 18 May 1984. (2) Adjudged Sentence: A reduction to E-1, forfeiture of $300 pay per month for six months, confinement at hard labor for two months, and to be discharged from the service with a Bad-Conduct Discharge. (3) Date Sentence Approved: 31 August 2010 (4) Appellate Reviews: The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. On 4 January 1985, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 8 November 1985 4. SERVICE DETAILS: a. Date/Period of Enlistment: 3 February 1982 / 3 years b. Age at Enlistment/Education/GT Score: 18 / HS Graduate / 80 c. Highest Grade Achieved/MOS/Total Service: E-4 / 25C10, Radio Operator/Maintainer / 8 years, 7 months, 19 days (includes 411 days of involuntary excess leave from 20 September 2004 – 4 November 2005) d. Prior Service/Characterizations: DEP (7 November 1997-26 June 1978) / NA          RA (27 June 1978-2 February 1982) / HD e. Overseas Service/Combat Service: Germany / None f. Awards and Decorations: AGCM-2; ASR; OSR g. Performance Ratings: None h. Disciplinary Action(s)/Evidentiary Record: CG Article 15, dated 13 January 1984 (rendered during period under current review), for being AWOL from 9 December 1983 until 12 December 1983. The punishment consisted of a reduction to E-3 and forfeiture of $180 for one month. Memorandum for Record, dated 4 November 2005, subject: Missing Documents indicates four DA Form 4187 (Personnel Actions) were missing from the applicant’s; however, only two of those actions rendered during period under current review are listed as follows: DA Form 4187 documenting change of duty status from PDY to AWOL on 9 December 1983; and DA Form 4187 documenting change of duty status from AWOL to PDY on 12 December 1983. Six separate Personnel Actions (DA Forms 4187) documents the following changes in duty statuses: Dated 20 September 2005, the applicant’s duty status changed from PDY to Military Confinement, effective 24 July 1984. Dated 20 September 2005, the applicant’s status changed from Military Confinement to PDY, effective 14 September 1984. Dated 30 April 1985, the applicant’s duty status changed from PDY to AWOL, effective 16 September 1984. Dated 30 April 1985, the applicant’s duty status changed from AWOL to DFR, effective 16 October 1984. Dated 16 September 1985, the applicant’s status changed from DFR to PDY, effective 9 September 2005. Dated 19 September 2005, the applicant’s duty status changed from Confinement by Civilian Authorities to PDY, effective 9 September 2005. Special Court-Martial Order No. 37, dated 13 September 1984, promulgates the finding of guilty of the charges and its specifications, adjudged sentence, and the approval of the sentence, described at the preceding paragraph 3c(1). Memorandum Opinion, dated 4 January 1985, announced that both the approved findings of guilty and the sentence were affirmed. Special Court-Martial Order No. 85, dated 8 November 1985, ordered the BCD to be executed. i. Lost Time: 7,051 days AWOL: (19 October 1979-21 October 1979), (9 December 1983-11 December 1983), (16 September 1984-8 April 2002), (9 February 2004-8 September 2005), and Military Confinement: (24 July 1984-13 September 1984) j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Applicant’s self-authored statement, undated; DD Form 214, dated 4 November 2005; and SPCM Order No. 37, dated 13 September 1984. 6. POST SERVICE ACCOMPLISHMENTS: None. 7. REGULATORY CITATION(S): 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of his discharge from bad conduct discharge to honorable. The applicant’s available record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms there were 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. The Army Discharge Review Board (ADRB) 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. 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. 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. The applicant’s contentions, including that he was wrongfully discharged, were carefully considered. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discharged. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, the Board can find that his complete period of service was or was not sufficiently mitigating to warrant an upgrade of his characterization of service. The applicant contends that he was young and immature at the time of the discharge. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. The applicant contends upgrade would enable him to qualify for VA benefits as he has disabilities that resulted from his active duty service. However, eligibility for veterans' 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. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted no additional documents or contentions. b. Witness(es)/Observer(s): Yes 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 6 June 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: NA AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: 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 BH – Behavioral Health HD - Honorable Discharge OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police – PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150011841 5