Applicant Name:  

Application Receipt Date: 2011/12/28	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 evaluation of his discharge.  He admits that he was wrong for experiencing with drugs and that it was just one incident.  He provides that, unfortunately, a drug test took place and he was positive for cocaine.  He was court-martialed and sentenced to three months in jail, but that he was released from confinement in one month because of his good conduct.  He considers having paid enough for his wrongdoing.  He wants to continue in the military.  He was a good Soldier up to the date he decided to test the forbidden drug--he was out of his mind and he never repeated such action.  Based on his good service before committing the offense, he requests an upgrade to a general, under honorable conditions dishcarge.

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: 970912   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: HHC, 1st Bn, 228th Aviation Regiment, 128th Aviation Brigade, Fort Kobbe, Panama 

Time Lost: Military Confinement (940509-940721) for 74 days

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): Charges NIF/940509 sentence: BCD discharge; forfeiture of $550 x 6 months; confinement for 90 days; reduced to E-1, (BCD SPCM)

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  27
Current ENL Date: 920501    Current ENL Term: 3 Years  8 Months
Current ENL Service: 	05 Yrs, 01 Mos, 28 Days (includes involuntary excess leave (941024-970912))
Total Service:  		08 Yrs, 07 Mos, 28 Days ?????
Previous Discharges: 	RA (881101-920430) / HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 63S (Heavy Wheeled Vehicle)   GT: NIF   EDU: HS Grad   Overseas: SWA   Combat: None
Decorations/Awards: AAM; AGCM; NDSM; SWASM-2BS; NDPR; ASR; OSR-2; KLM(SA); KLM(K); 

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 or about 6 October 1994, the applicant was found guilty by a special court-martial, and that the result of the court-martial was promulgated in Special Court-Martial Order Number 13, Headquarters, United States Army South, dated 6 October 1994.  Although the applicant’s record is void of the specific facts and circumstances concerning his court-martial, the orders dated 25 January 1995, Department of the Army, Headquarters, United South Army South, Fort Clayton, Panama, Special Court-Martial Order No. 4, announced the affirmed sentence of a Bad Conduct Discharge; forfeiture of $550 x 6 months; confinement for 90 days, and reduction to E-1, and ordered to execute the bad conduct discharge and indicated that the sentence extending to confinement had been served.
       
       In connection with the court-martial sentence, the appellate review proceedings would have entailed that on a certain date, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  
       
       On 25 January 1995, the sentence was affirmed and complied with pursuant to Article 64(c), and the 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.  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, 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 and promulgated by Special Court-Martial Order Number 13.  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 applicant contends he is entitled to an upgrade of his discharge because he feels he paid enough for his wrongdoing, his court-martial was based on an isolated incident, he was a good Soldier and wants to continue in the military.  The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant clemency and an upgrade to the characterization of his discharge.  Furthermore, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The analyst determined that the applicant's single 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 single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge.  Further, 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. 
       
       After a thorough review of the applicant’s records and the issue 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: 1 June 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 15 December 2011

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 NA    No change NA
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
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 AR20120000068
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