Applicant Name:  ?????

Application Receipt Date: 2009/07/21	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: GI Bill or other Veterans’ Benefits;  Isolated incident.

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: 070611   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: D Co, 1-503rd Inf Bn, 2nd BCT, Fort Carson, CO 

Time Lost: AWOL, for  72 days (050320-050531), apprehended; AWOL 27 days (050804-050830), mode of return unknown.  Total lost time is 99 days.

Article 15s (Charges/Dates/Punishment): 050718, on or about 20 March 2005, without authority, the applicant, did absent himself from his unit, to wit: 2d ID (FWD)(DET), located at Fort Carson, CO, and did remain so absent until on or about 31 May 2005; reduction to Specialist (E-4), forfeiture of $938.00 pay per month for two months, extra duty for 45 days, restriction to the limits of the battalion area for 45 days (FG).

Courts-Martial (Charges/Dates/Punishment):  The record is void of facts; however, the applicant submitted a document indicating he received a Special Court-Martial on 13 December 2006 that sentenced him to reduction to Private (E-1) and a Bad Conduct Discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 021018    Current ENL Term: 5 Years  ?????
Current ENL Service: 	04 Yrs, 07Mos, 23Days includes 519 days of excess leave (060109-070611)
Total Service:  		06 Yrs, 07Mos, 05Days ?????
Previous Discharges: 	RA 000727-021017/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11C10/Indirect Fire Infantryman   GT: 110   EDU: HS   Overseas: Korea, SWA   Combat: NCOER 200402-200501 contained in his OMPF indicates he served in Iraq.
Decorations/Awards: AAM-3 (listed in OMPF but not on DD 214), AGCM, NDSM, GWOTSM, KDSM, ASR, CIB

V.  Post-Discharge Activity
City, State:  Alamosa, CO
Post Service Accomplishments: None listed by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 17 November 2005, the applicant was found guilty by a special court-martial for, on or about 4 August 2005, without authority, absented himself from his unit, to wit: HHC, 2nd BCT(Fwd)(Provisional), located at Fort Carson, CO, and did remain so absent until 30 August 2005; having been restricted to the limits of 2nd BCT(Fwd)(Provisional) Bn area, by a person authorized to do so, at Fort Carson, CO, on or about 4 August 2005, broke said restriction; at or near Colorado Springs, CO, on or about 15 July 2005, did operate a vehicle, to wit: a passenger car, while the alcohol concentration of his breath was .10 grams or more of alcohol per 210 liters of breath as shown by chemical analysis.  He was sentenced to be discharged with a Bad Conduct Discharge,  and reduction to E-1.  The analyst presumed the record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  
       On 5 April 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 13 December 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, and the issue and documents submitted with the application, the analyst found several mitigating factors that would merit an upgrade of the characterization of service to general, under honorable conditions.  
       
       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 Army Discharge Review Board is empowered to change the characterization of 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 analyst carefully reviewed the applicant’s military record and the diagnosis of PTSD, an anxiety disorder, and major depression and found that clemency was warranted. 
       
       The applicant contend this was an isolated incident; however, even though a single 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 a single incident provides the basis for a characterization.  The analyst having examined all the circumstances 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, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       Accordingly, the analyst recommends to the Board that the applicant’s characterization of service be upgraded to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 28 April 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Special Court-Martial Order #174, VA Eligibility Letter, NCOER (Feb 04-Jan 05), Mental Evaluation Report (2), Copy of Mental Health Treatment Plan, DA Form 31 undated 
  

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 clemency is warranted based on the applicant's length of service, quality of service and combat service in Iraq.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions, or honorable.  A change in the reason for discharge is not authorized under Federal statute.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 3    No change 2
Reason -     Change NA    No change NA
(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 AR20090012973
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