Applicant Name: ????? Application Receipt Date: 2010/07/19 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states: " An upgrade is request in an effort to secure employment other than day labor work, so that I can have a solid foundation in a secure job setting and most importantly and in conjunction with my efforts helping the homeless in the [redacted] of Idaho. I feel that I can re-commit to the community minded endeavor(s) I had set for myself during my two seasons working at the [redacted] service helping people to get their finances straighten out. Having been a business administration mathematics tutor in the past is something that I would also like to continue. Being unable to change the past doesn't mean that there is no hope for the future." II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 040202 Discharge Received: Date: 070713 Chapter: 3 AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: Howitzer Btry, 3/3d ACR, Fort Bragg, NC Time Lost: Confinement military authority 71 days (040202-040412) as the result of punishment received from the Special Court-Martial. Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): 040202, SPCM, Disrespectful in language toward a noncommissioned officer (040102), and assault on a noncommissioned officer (040102), sentenced to bad conduct discharge, confinement for 4 months, reduction to E-1. Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 29 Current ENL Date: 020801 Current ENL Term: 04 Years ????? Current ENL Service: 04 Yrs, 09 Mos, 01 Days Includes 1186 days of excess leave (040414-070713) Total Service: 04 Yrs, 09 Mos, 01 Days ????? Previous Discharges: None Highest Grade: E3 Performance Ratings Available: Yes No MOS: 13B10/Cannon Crewmember GT: NIF EDU: HS Grad Overseas: Southwest Asia Combat: Iraq (Period of service not found in the available records). Decorations/Awards: ASR V. Post-Discharge Activity City, State: Nampa, ID Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 2 February 2004, the applicant was found guilty by a special court-martial of being disrespectful in language towards a noncommissioned officer and assault on a noncommissioned officer (040102), He was sentenced to reduction to Private (E-1), confinement for 4 months, and to be discharged from the service with a Bad Conduct Discharge. On 23 November 2004, the sentence was approved, except for the part of the sentence extending to a bad conduct discharge was to be executed and the applicant was credited with 28 days of confinement against the sentence to confinement. 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 Military Review affirmed the approved findings of guilty and the sentence. On 2 November 2005, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed. b. Legal Basis for Separation: 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. 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 ADRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the analyst found no mitigating factors that would warrant clemency. There was a full consideration of all faithful and honorable service as well as the incidents of misconduct. The evidence of record indicates the applicant was adjudged guilty by a court-martial and that the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The analyst is empowered to recommend a change to 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 analyst noted the applicant's issue of wanting a upgrade of his discharge for the purpose of securing employment, however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. After a thorough review of the applicant’s records, the analyst found no cause for clemency and therefore recommends to the Board to deny clemency. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 13 April 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: [redacted ] Witnesses/Observers: NA Exhibits Submitted: DD Form 293, Special Court Martial Order Letters from ; [ redacted ] Services, [ redacted ] Mission (3), Chief, Congressional and Special Actions, Chief of Legislative Liaision Congressional Inquiry Division, Congress of the United States House of Representatives, dated 28 June 2010, email from Chief, Congressional and Special Actions, Special Court-Martial Order Numeber 26, dated 23 November 2004, Special Court-Martial Order Number [ redacted ], dated [ redacted ] 2005, Discharge Order, dated 9 July 2007, Document from the Department of Veterans Affairs (5), DD Form 214 for the period of service under review (4). VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board found no cause for clemency and therefore voted to deny relief. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 0 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20100019390 ______________________________________________________________________________ Page 2 of 3 pages