Applicant Name:  ?????

Application Receipt Date: 2011/12/05	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 his discharge was inequitable because it was based on an isolated incident during one year and ten months of service.  He further contends his discharge was in excess to what most Soldiers would have received with no prior UCMJ action.    

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: 	NIF   Date: NIF
Discharge Received: 			   Date: 070831   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: 258th Military Police Company, Fort Polk, LA 

Time Lost: AWOL for 320 days (030719-040607), surrendered; confinement/military authorities for 191 days           (041203-050614).  Total time lost 511 days. 

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

Courts-Martial (Charges/Dates/Punishment): 041203, SPCM, with the intent to shirk important service, quit his unit and remained in desertion from (030719-040608); reduction to E-1, forfeiture of $795 pay x 9 months, confinement for 9 months and a bad-conduct discharge.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 021022    Current ENL Term: 05 Years  ?????
Current ENL Service: 	03  Yrs, 05  Mos, 08  Days ?????
Total Service:  		03  Yrs, 08  Mos, 12  Days includes 799 days of excess leave (050624-070831).
Previous Discharges: 	USAR-020718-021022/NA
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 31B10 Military Police   GT: 95   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 3 December 2004, the applicant was found guilty by a special court-martial with the intent of shirking important service, namely, deployment to Cuba, quit his unit on 19 July 2003 and and remained in desertion until 8 June 2004.  He was sentenced to reduction to E-1, forfeiture of $795 pay x 9 months, confinement for 9 months and a bad-conduct discharge.
       
       
       
       On 15 June 2005, 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.  The United States Army Court of Military Review affirming the approved findings of guilty and the sentence, and the order executing the sentence are not contained in the available record and the analyst presumed government regularity in the judicial process.
       
       On 20 August 2007, DA, U.S. Army Installation Management Command, HQS, U.S. Army Garriosn, Fort Sill,  Fort Sill, OK, discharged the applicant from the Regular Army, effective date:  31 August 2007.

       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, the  issues and application he submitted, 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 discharge.
       
       The applicant contends his discharge was inequitable because it was based on an isolated incident during one year and ten months of service.  Even though an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization.  
       
       The analyst having examined all the circumstances determined that the applicant's isolated incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  This isolated incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge.
       
       The applicant further contends his discharge was in excess to what most Soldiers would have received with no prior UCMJ action. The applicant bears the burden of 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 the contention that his discharge was excessive.  
       
       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 and the application he submitted, 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: 30 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (111201); Applicant's letter to the Secretary of the Army, dated (070708); Commanding General, Fort Polk, response to the letter from the applicant, dated (070817); two (2) Secretary of the Army, respones to the letter from the applicant, dated (070926), (070819); Discharge Orders 232-00682, dated (070820); and an Enlisted Record Brief (ERB), dated (050624).

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						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 0
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

XI.  Certification Signature
Approval Authority:




Colonel, U.S. Army
President, Army Discharge Review Board




Lieutenant Colonel, U. S. Army
Secretary Recorder
????












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 AR20110024215
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