Applicant Name:  ?????

Application Receipt Date: 2010/12/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to general,under honorable conditions.  He contends that he was punished for something that a Soldier that he lived with did.  He desires to serve his country again.

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: NIF
Discharge Received: 			   Date: 070126   Chapter: 3     AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: HHC, 1-87th IN Bn (Rear) (Provisional), Fort Drum, NY  

Time Lost: Confinement/Military Authorities for 179 days (040304-040829).

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

Courts-Martial (Charges/Dates/Punishment): 040304, SPCM, unlawfully entered barracks rooms 121 and 119, the property of the United States, with the intent to commit larceny therein x 2 (031025-031031), (031025-031031); wrongfully received a television and a radio, of a value less than $500, the property of a PFC and a SPC (031106); wrongfully received check numbered 133, of a value less than $500, the property of a SPC (031107); forgery and larceny, of a value of about $800, the property of a SPC (031208); with intent to defraud, falsely made check number 133, in the amount of $800 to another Soldier (031208); with intent to defraud, uttered a certain check,  in the amount of $800 (031209); wrongfully used marijuana (031112-031211); forfeiture of $795 pay x 7 months, confinement for 7 months, and discharged from the Army with a bad-conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 020829    Current ENL Term: 03 Years  retained in service 347 days for the convenience of the government per AR 635-200.
Current ENL Service: 	03  Yrs, 11 Mos, 12 Days ?????
Total Service:  		03  Yrs, 11 Mos, 12 Days includes 890 days of excess leave (040820-070126)
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 91   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  New York, Y 
Post Service Accomplishments: None Listed




 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 4 March 2004, the applicant was found guilty by a special court-martial of  unlawfully entering barracks rooms 121 and 119, the property of the United States, with the intent to commit larceny therein x 2 (031025-031031), (031025-031031); wrongfully receiving a television and a radio, of a value less than $500, the property of a PFC and a SPC (031106); wrongfully receiving a check numbered 133, of a value less than $500, the property of a SPC (031107); forgery and larceny, of a value of about $800, the property of a SPC (031208); with intent to defraud, falsely making check number 133, in the amount of $800 to another Soldier (031208); with intent to defraud, uttering a certain check,  in the amount of $800 (031209); wrongfully using marijuana (031112-031211).  He was sentenced to forfeiture of $795 pay x 7 months, confinement for 7 months, and a bad-conduct discharge. 
       
       On 24 May 2004, the sentence was approved.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 16 February 2006, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 14 July 2006, 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.

       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 and the issues 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 that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence.  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.  By the misconduct (court-martial conviction), the applicant diminished the quality of his service below that meriting a general, under honorable conditions.
       
       The applicant contends that he was punished for something that a Soldier that he lived with did.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his contention.  There is no evidence in the record, nor has the applicant provided any evidence, to support his contention that he was unjustly punished as he claims. 
       
       Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  After a thorough review of the applicant’s record, the issue 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: 12 August 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (101220).

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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None




















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 AR20110000025
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