Applicant Name:  ?????

Application Receipt Date: 2012/01/05	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, through his counsel that the discharge he received is too harsh, he requests clemency in the form of an upgrade of his discharge to general, under honorable conditions and a change to the reason for the discharge as well.  He contends that he was in a non-deployable status when he was in Kuwait for 25 days; he received orders to redeploy back to the United States for preparation to ETS out of the United States Army with a discharge effective date of 1 April 2003. That he became the target of constant harassment and reprisal from the rear detachment commander.  The applicant believes that this was a direct result of his redeployment back the United States. There was an unspoken prejudice and bias against rear detachment Soldiers.  The applicant was proactive in keeping his leadership informed of his pending ETS date and non- deployable status.  The applicant submitted a legal Personnel Action Request form requesting to be recognized as a Conscientious Objector.  This action only inflamed an already unstable relationship between the applicant and the rear detachment commander.  Further he contends there were mitigating family issues that occurred when the applicant received a Red Cross message informing him of his paternal grandmother’s hospitalization.  This added to the pressure that the Soldier was already experiencing from his leadership and family issues.  The applicant submitted a request for discharge in lieu of court martial; no matter what effort he made to defend himself from persecution he could not get the help he needed from any military agency set up to ensure that command abuse did not happen.

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: 070817   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Company D, 703d Main Support Battalion, Fort Stewart, Georgia  

Time Lost: Military Confinement for a total of 70 days (030715 - 030925), released back to unit.

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

Courts-Martial (Charges/Dates/Punishment): 030715, without authority went from his appointed place of duty (030225); through design missed the movement of the commercial aircraft flying from Baltimore, MD to Savannah, GA with which he was required in the course of duty to move (030211); behaved himself with disrespect toward CPT J[redacted], his superior commissioned officer, by saying to him contemptuously “or what”, or words to that effect, by attempting to stare down CPT J[redacted], and by turning and walking away from CPT J[redacted] while the captain was talking to him (030225); disobeyed a lawful order from CPT J[redacted], his superior commissioned officer, to “stand at the position of attention”(030225); was disrespectful in language towards SGT P[redacted], an NCO, by writing on a counseling statement, “. . .I don’t give a fuck about your cause. . .Kiss my ass,” (030225); without authority failed to go at the time prescribed to his appointed place of duty, to wit: 0400 Gate Guard (021023); disrespectful in language towards SSG H[redacted], a NCO, by saying to him “Whatever sergeant” during a corrective session (020822); having knowledge of a lawful order by CPT Y[redacted] to proceed to the medical center to receive an Anthrax vaccination in preparation for deployment, an order which it was his duty to obey, failed to obey the same (030113); with intent to deceive make a false official statement to SFC G[redacted] (021223); with intent to deceive, unlawfully alter an official record, to wit: a sick call slip, falsifying the release time from 0715 to 0915 (021223).  He was sentenced to be discharged with a Bad Conduct Discharge, and reduction to E-1.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 990402    Current ENL Term: 5 Years  retained in service 1599 days for the convenience of the government
Current ENL Service: 	8  Yrs, 2 Mos, 5 Days excess leave 1422 days (030926-070817)
Total Service:  		8  Yrs, 2 Mos, 5 Days Includes the period of excess leave
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 63H10 Tracked Vehicle Mechanic   GT: 97   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: NDSM, ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 15 July 2003, the applicant was found guilty by a special court-martial of without authority went from his appointed place of duty (030225); through design missed the movement of the commercial aircraft flying from Baltimore, MD to Savannah, GA with which he was required in the course of duty to move (030211); behaved himself with disrespect toward CPT J.R.K., his superior commissioned officer, by saying to him contemptuously “or what”, or words to that effect, by attempting to stare down CPT J[redacted], and by turning and walking away from CPT J[redacted] while the captain was talking to him (030225); disobeyed a lawful order from CPT J[redacted], his superior commissioned officer, to “stand at the position of attention”(030225); was disrespectful in language towards SGT P[redacted], an NCO, by writing on a counseling statement, “. . .I don’t give a fuck about your cause. . .Kiss my ass,” (030225); without authority failed to go at the time prescribed to his appointed place of duty, to wit: 0400 Gate Guard (021023); disrespectful in language towards SSG H[redacted], a NCO, by saying to him “Whatever sergeant” during a corrective session (020822); having knowledge of a lawful order by CPT Y[redacted] to proceed to the medical center to receive an Anthrax vaccination in preparation for deployment, an order which it was his duty to obey, failed to obey the same (030113); with intent to deceive make a false official statement to SFC G[redacted] (021223); with intent to deceive, unlawfully alter an official record, to wit: a sick call slip, falsifying the release time from 0715 to 0915 (021223).  He was sentenced to be discharged with a Bad Conduct Discharge, and reduction to E-1.  
       
       On 15 July 2003, 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 14 July 2006, The United States Army Court of Military Review affirmed the approved findings as corrected by US Army court of Criminal Appeals Notice of Court-Martial Order Correction, dated 21 February 2006 of guilty and the sentence.  
       
       On 14 July 2003, 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.
       
       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, 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 applicant contends that his discharge was unjust because he was non-deployable, was harassed, and his misconduct was mitigated by family events.  However, 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 issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discharged.   In fact, the applicant’s special-court martial adjudged a bad conduct-discharge that was properly adjudged as affirmed by the US Army Court of Criminal Appeals on 14 July 2006. And the applicant’s statements alone do not overcome the government’s presumption of regularity.
       
       Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the court-martial process.  
       
       Finally, the Board does not have the authority to change the narrative reason for discharges adjudged as a result of a special court-martial.
       
       After a thorough review of the applicant’s records and 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: 21 May 2012         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: yes [redacted]

Witnesses/Observers: Wife 

Exhibits Submitted: DD Form 293, self-authored statement through counsel, sequence of events listing, various awards and certificates, various orders, various counseling statements, memorandum for record, dated 16 July 2003; appendix 6 of non-deployable criteria to annex I, application for shipment and/or storage of personal property, MILPER message #03-101, stop loss guidance page, red-cross message, memorandum, dated 2 June 2004; statement/affidavit, dated 2 July 2003; ETS extension memorandum for record, dated 27 March 2003; letter to senator, dated 25 April 2003; request for discharge in lieu of courts-martial, memorandum of support,  courts-martial proceeding examination record, Stockton College Transcript,  and a DD Form 214.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the analyst’s recommendation and rationale, the Board determined that clemency is warranted based on the applicant’s overall length and quality of service and the circumstances surrounding the discharge .  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.
        
IX.  Board Decision						
Board Vote:
Character - Change 5    No change 0
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: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
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 AR20120000490
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