1. Applicant's Name: a. Application Date: 25 September 2017 b. Date Received: 28 September 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of the characterization of service from bad conduct to general (under honorable conditions). The applicant seeks relief contending, in effect, the punishment was too harsh under the circumstances at the time of discharge. At the time of discharge, the applicant was experiencing stress, pain and turmoil due to the mother's health issues. The applicant was informed of the mother's medical condition and became emotionally traumatized, mentally distraught and unable to think clearly or rationally. The applicant began to self-medicate with marijuana. The applicant desires to receive VA benefits. In a records review conducted at Arlington, VA on 24 April 2019, and by a 4-1 vote, the Board determined that clemency is warranted. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to under other honorable conditions. A change in the reason for discharge is not authorized under Federal statute. (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: 1 December 2004 c. Separation Facts: NA (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: The applicant was found guilty by a Special Court-Martial of the following offenses: being AWOL (24 February 2003 until 5 March 2003); wrongful possession of some amount of marijuana (26 February 2003); wrongful use of marijuana x6 (19 February 2003, 21 February 2003, 23 February 2003, 24 February 2003, 24 February 2003 and 2 March 2003); and dereliction in the performance of duties, by willfully failing to remain in his quarters (23 February 2003). On 8 April 2003, he was sentenced to be confined for five months, forfeiture of $767 pay for five months, and to be discharged from the Service with a bad-conduct discharge. On 17 September 2003, the sentence was approved. The record of trial was forwarded to The US Army Court of Criminal Appeals for review. On 13 May 2004, The US Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 23 September 2004, the sentence was finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed. (3) Recommended Characterization: NA (4) Legal Consultation Date: NA (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 1 December 2004 / Bad Conduct Discharge 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 February 2001 / 4 years b. Age at Enlistment / Education / GT Score: 18 years / HS Graduate / 110 c. Highest Grade Achieved / MOS / Total Service: E-3 / 62J10, General Construction Equipment Repairer / 3 years, 5 months, 21 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea f. Awards and Decorations: NDSM, ASR, OSR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial, see paragraph 3c(2) above. i. Lost Time / Mode of Return: AWOL x2 for 13 days; 28 December 2002 until 29 December 2002 for 2 days and 24 February 2003 until 4 March 2003 for 11 days; mode of return for both periods are unknown. Pre-trial confinement for 33 days, 5 March 2003 until 7 April 2003; and confinement military authorities for 83 days, 8 April 2003 until 1 July 2003. Total lost time 129 days. Applicant also had 519 days of excess leave 2 July 2003 until 1 December 2004. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 (two pages); DD Form 214; DA Form 2-1 (one page); and handwritten self-authored statement (three pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section III establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and 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 imposed. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of the characterization of service from bad conduct to general (under honorable conditions). 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 seeks relief contending, his punishment was too harsh under the circumstances at the time of his discharge. The record of evidence shows that the US Army Court of Criminal Appeals, on consideration of the entire record, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact. The findings of guilty and the sentence were affirmed. The applicant further contends, at the time of his discharge he was experiencing stress, pain and turmoil due to his mother's health issues; and he was informed of his mother's medical condition, he became emotionally traumatized, mentally distraught and unable to think clearly or rationally. The record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. The applicant also contends he began to self-medicate with marijuana. 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 desires to receive VA benefits. Eligibility for veteran's 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 judicial due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 24 April 2019, and by a 4-1 vote, the Board determined that clemency is warranted. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to under other honorable conditions. A change in the reason for discharge is not authorized under Federal statute. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: SECRETARIAL REVIEWING AUTHORITY: Although, the board recommended relief, the Deputy Assistant Secretary of the Army (Review Boards) exercised her Secretarial Reviewing Authority (SRA) to review the findings, conclusions, and the Board's determination under the authority of Title 10 United States Code Section 1553(b) and Department of Defense Instruction 1332.28 (Discharge Review Board (DRB) Procedures and Standards) enclosure E3.7.1.1.1. The SRA concurred with the Board's determination to upgrade the characterization; however, the SRA directed the characterization be upgraded to General (Under Honorable Conditions). 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 AR20170016589 1