Applicant Name:  ?????

Application Receipt Date: 2010/12/27	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "An upgrade is requested because I was rehabilitated through serving jail time in the Marine Corps Base Brig in 2007, and since then my record prohibits me from expanding what I have learn in the military.  I also make this request because, I am a law abiding citizen, and have done nothing but walk in a straight path since.  I regret what I have done and I have learned from my mistake.  My fault in the past also prohibits me from properly taking care of my six children, and I am asking for another chance.  There are many of people in the world who have done wrong, and doesn't deserve a second or third chance, and there are people who have made mistakes and do deserve another chance, and I'm one of them.  I am a good and kind hearted person that has learned how to handle situations in the proper and legal manner, this was my first offense and my last, and I ask please reward me as I have once served my country honorably."

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: 070405
Discharge Received: 			   Date: 080229   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: 270th Sig Co, 50th Sig Bn, (Abn), Fort Bragg, NC 

Time Lost: Confinement military 76 days (070405-070618), result of Special Court-Martial.

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 070405, SPCM, Wrongful distribution of marijuana x 2 (060530 and 060616) and wrongful possession of marijuana between (060530 and 060616).  Punishment consisted of Bad Conduct Discharge, confinement for 3 months, and reduction to E1.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 050411    Current ENL Term: 04 Years  ?????
Current ENL Service: 	02 Yrs, 08 Mos, 05 Days Includes 256 days of excess leave (070619-080229)
Total Service:  		05 Yrs, 05 Mos, 01 Days ?????
Previous Discharges: 	RA-020716-050410/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 25U10/Sig Supt Sys Spec   GT: 93   EDU: HS Grad   Overseas: Korea   Combat: None
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTEM, GWOTSM, KDSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Fayetteville, NC
Post Service Accomplishments: None Listed




VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 5 April 2007, the applicant was found guilty by a special court-martial of wrongfully distributing marijuana x 2 (060530 and 060616) and wrongfully possessing marijuana between (060530 and 060616).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 5 month, and reduction to E-1.  
       
       On 7 June 2007, the sentence as provided for a bad conduct discharge, confinement for 3 months, and reduction to the grade of E1 was approved, and except for the part of the sentence extending to a bad conduct discharge was to be executed.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 16 July 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 1 November 2007, the sentence having been affirmed pursuant to Article 71c having been complied with, the confinements having been served, the bad conduct discharge 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.
       
       Issues Concerning Bad-Conduct Discharges (BCD): 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 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 during the period of enlistment under review, the issues 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.  
       
       Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  
       
       Further, 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 and the issues and documents submitted with the application, 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: 17 August 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, Statements of support (8), Special Court-Martial Order, dated 1 November 2007, and DD Form 214 for the period of service under review.

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 determined that the discharge was both proper and equitable, and 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 AR20100030450
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