1. Applicant's Name: a. Application Date: 26 May 2017 b. Date Received: 26 May 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his bad conduct discharge to honorable or general (under honorable conditions). The applicant seeks relief contending, in effect, he made a mistake by following an order of his superior SGT C, for which he is deeply remorseful and sincerely apologetic. He states, two of his closest friends were murdered while he was at NTC. He asked for leave, but he was denied due to the war time status. He began drinking heavily to cope with the loss of his friends. In his drunken stupor, he must have been slipped some drugs and later tested positive for cocaine. He states, he joined the Army to serve the country and make his family proud. He also wanted to ensure a brighter future for himself and a future family. He volunteered in true faith to defend the constitution of the United States of America against all enemies both foreign and domestic. He would still do the same until the day of his death with God's help. He was a solid Soldier, who completed all of his required training and field problems. He requests that the Board grant an upgrade and change his reentry code in order to allow him to rejoin the military through a retraining program and become a distinguished citizen once again. He also desires the upgrade in order to use the services of the Veterans Affairs. In a records review conducted at Arlington, VA on 10 October 2018, 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: 21 May 2004 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As announced by Special Court-Martial Order Number 25, dated 13 June 2003, on 10 January 2003, the applicant was found guilty of the following: Charge I. Article 86. Plea: Guilty. Finding: Guilty. Specification 1: Without authority, on or about 23 September 2002, fail to go at the time prescribed to his appointed place of duty. Plea: Guilty. Finding: Guilty. Specification 2: Without authority, on or about 24 September 2002, fail to go at the time prescribed to his appointed place of duty. Plea: Guilty. Finding: Guilty. Specification 3: On or about 1 November 2002, without authority, absent himself from his unit and did remain absent until on or about 4 November 2002. Plea: Guilty. Finding: Guilty. Charge II. Article 91. Plea: Guilty. Finding: Guilty. Specification 1: Disrespectful in language and deportment on or about 1 September 2002, toward SGT J.C., a superior noncommissioned officer, by throwing down an ammunition canister and saying to SGT J. C., "Upload the vehicle yourself," or words to that effect. Plea: Guilty. Finding: Guilty. Specification 2: Disrespectful in language and deportment toward SGT J.C., a superior noncommissioned officer, "It's your fucking trash and you are taking it," or words to that effect. Plea: Guilty, except the word "fucking"; of the excepted word: Not Guilty. Finding: Guilty. Charge III. Article 112a. Plea: Guilty. Finding: Guilty. Specification 1: Wrongfully use marijuana, between on or about 8 July 2002 and 8 August 2002. Plea: Guilty. Finding: Guilty. Specification 2: Wrongfully use marijuana, between on or about 30 August 2002 and 30 September 2002. Plea: Guilty. Finding: Guilty. Charge III. Article 112a. Plea: Guilty. Finding: Guilty. Specification 1: Wrongfully use marijuana, between on or about 8 July 2002 and 8 August 2002. Plea: Guilty. Finding: Guilty. Specification 2: Wrongfully use marijuana, between on or about 30 August 2002 and 30 September 2002. Plea: Guilty. Finding: Guilty. Specification 3: Wrongfully use cocaine between on or about 23 September 2002 and 30 September 2002. Plea: Not Guilty. Finding: None entered, dismissed by military judge upon motion by the government. Charge IV. Article 134. Plea: Not Guilty. Finding: None entered, dismissed by military judge upon motion by the government. The Specification: Wrongfully communicate to SGT J.C., on or about 4 September 2002, a threat to injure him by saying" I will whoop your ass," or words to that effect. Plea: Not Guilty. Finding: None entered, dismissed by military judge upon motion by the government. Additional Charge I. A1iicle 86. Plea: Guilty. Finding: Guilty. Specification 1: On or about 25 November 2002, without authority, absent himself from his unit and did remain absent until on or about 26 November 2002. Plea: Guilty. Finding: Guilty. Specification 2: On or about 2 December 2002, without authority, absent himself from his unit and did remain absent until on or about 3 December 2002. Plea: Not Guilty. Finding: None entered, dismissed by military judge upon motion by the government. Additional Charge II. Article 134. Plea: Not Guilty. Finding: None entered, dismissed by military judge upon motion by government. The Specification: On or about 2 December 2002, having being restricted to post, by a person authorized to do so, break said restriction. Plea: Not Guilty. Finding: None entered, dismissed by military judge upon motion by government. (2) Adjudged Sentence: Forfeiture of $767 pay per month for five months, confinement for five months, and a Bad Conduct discharge. (3) Date/Sentence Approved: 13 June 2003 / Only so much of the sentence as provides for forfeiture of $767.00 pay per month for five months, confinement for four months, and a Bad-Conduct Discharge is approved and except for the part of the sentence that provides for a Bad-Conduct Discharge, would be executed. Only so much of the finding of Guilty of Specification 1 of Charge II as finds that the accused was, at or near Fort Carson, Colorado, on or about 1 September 2002, disrespectful in language toward Sergeant J. C., a superior noncommissioned officer, then know by-the accused to be a superior noncommissioned officer, who was then in the execution of his office, by saying to Sergeant Cooper, "Upload the vehicle yourself," or words to that effect is approved. Only so much of the finding of Guilty of Specification 2 of Charge II as finds that the accused was, at or near Fort Carson, Colorado, on or about 4 September 2002, disrespectful in language toward Sergeant J. C., a superior noncommissioned officer, then-know by the accused to be a superior noncommissioned officer, who was then in the execution of his office, by saying to Sergeant C., "It's your fucking trash and you are taking it," or words to that effect was approved. The remaining findings of Guilty were approved. The applicant was credited with 31 days of confinement against the sentence to confinement. (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. The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. (5) Date Sentence of BCD Ordered Executed: 19 March 2004 4. SERVICE DETAILS: a. Date / Period of Enlistment: 21 September 2001 / 4 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / 104 c. Highest Grade Achieved / MOS / Total Service: E-2 / 13B10, Cannon Crewmember / 2 years, 4 months, 13 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWOTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order as described in previous paragraph 3c. FG Article 15, dated 9 August 2002, for wrongfully using marijuana (between 30 April and 30 May 2002). The punishment consisted of a forfeiture of $552 pay per month for two months; and, extra duty and restriction for 45 days. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Confined by Military Authorities (CMA)" effective 3 December 2002; and, From "CMA" to "PDY," effective 18 March 2003. i. Lost Time / Mode of Return: 104 days: AWOL, 1 November 2002 - 3 November 2002 / NIF Confinement, 3 December 2002 - 17 March 2003 / Released from Confinement j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293. 6. POST SERVICE ACCOMPLISHMENTS: 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. 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial, Other. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to honorable or general (under honorable conditions) discharge. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 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. The applicant contends that he was issues dealing with the murder of two of his friends that affected his behavior and ultimately caused him to be discharged. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant contends that he had good service. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 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. The applicant contends that an upgrade of his discharge would allow veterans benefits through the use of the Veterans Affairs. However, eligibility for veteran's benefits do 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. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 10 October 2018, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer 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 NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20170009449 1