1. Applicant's Name: a. Application Date: 24 October 2017 b. Date Received: 26 October 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, was discharged as a result of a Special Court-Martial and it was the second court martial for the same offense; the applicant's command knew of the second infraction at the time of the first court marital, but chose to hold off on charges. The applicant initially started the use of marijuana to deal with back pain from an injury incurred in service. Since leaving service, the applicant has been a model citizen and have not had any criminal violations. In a records review conducted at Arlington, VA on 7 December 2018, and by a 3-2 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: 13 May 2003 c. Separation Facts: No (1) Date of Notification of Intent to Separate: NA (2) Basis for Separation: The complete record of trial by the Special Court-Martial is not contained in the available record and government regularity is presumed in the judicial process. On 19 September 2002, 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: 13 May 2003 / Bad-Conduct 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 April 1998 / 4 years b. Age at Enlistment / Education / GT Score: 23 years / GED Certificate / 110 c. Highest Grade Achieved / MOS / Total Service: E-4 / 31R10, Multichannel Transmission Systems Operator / Maintainer / 5 years, 1 month, 12 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: Korea f. Awards and Decorations: AAM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 24 October 2000, for being found drunk on duty (21 July 2000); reduction to PFC / E-3, forfeiture of $294 pay (suspended); extra duty and restriction for 14 days. FG Article 15, dated 21 November 2000, for wrongful use of marijuana between (23 September 2000 and 23 October 2000); reduction to PVT / E-1, forfeiture of $500 pay for two months and restriction for 60 days. Positive urinalysis test coded CO (Competence for Duty/Command Direct/fitness for duty), dated 15 March 2001, for THC. Summary Court-Martial, 12 April 2001, contained in the record of evidence is incomplete. DD Form 458, Charge Sheet, dated 14 June 2001, relates the applicant was charged with wrongful use of marijuana. i. Lost Time / Mode of Return: None / the applicant had 636 days of excess leave, 16 August 2001 to 13 May 2003 j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); character statement; Letter, SA K., CID; court martial proceedings (293 pages); and medical records (18 pages). 6. POST SERVICE ACCOMPLISHMENTS: The applicant states in his application that he started his own business. He volunteer for a local community non-profit organization, the Chagrin Falls Dads' Club. He also is a troop leader for his local Cub Scout Troop. 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 available record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 3, Section III, by reason of court-martial, other, with a characterization of service of bad conduct. Barring evidence to the contrary, the presumption of government regularity prevails as all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the DD Form 214 shows a Separation Code of JJD (i.e., court-martial, other, with a reentry eligibility (RE) code of 4. The applicant seeks relief contending, he was discharged as a result of a Special Court-Martial, this was the second court martial for the same offences; his command knew of the second infraction at the time of his first court marital, but chose to hold off on charging him. However, the merit of these contentions cannot be substantiated because the facts and circumstances that led to his discharge are not contained in the available record. The applicant further contends, he initially started the use of marijuana to deal with back pain from an injury incurred in service. 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 also contends, since leaving service he has been a model citizen and have not had any criminal violations. The applicant is to be commended for his effort. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. If the applicant desires a personal appearance hearing, it is his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration because they are not available in the official record. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full judicial due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 7 December 2018, and by a 3-2 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 AR20170019049 4