Applicant Name:  ?????

Application Receipt Date: 2009/11/30	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant's mother states in effect that he needs urgent help because her son is homeless.  He was unfairly treated by the Army.  He suffered a mental breakdown while serving in Iraq.  He is currently in the hospital with seizures and suffering from depression and PTSD.  He requests an upgrade to general, under honorable conditions.  

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: 090227   Chapter: 3    AR: 635-200
Reason: Court Martial, Other	   RE:     SPD: JJD   Unit/Location: A Co 701st MSB, Tikrit, Iraq 

Time Lost: 298 days, confined by military authorities (041129-050922)

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

Courts-Martial (Charges/Dates/Punishment): 041129, SPCM, while in Tikrit, Iraq, disrespectful in deportment towards an NCO (040722), dereliction of duty by locking and loading a weapon while in the barracks (040722), destruction of military property (040807), while in a combat zone feign mental derangement to avoid service (040808), disorderly conduct (050807).  Sentenced to reduction to E-1, confinement for 12 months, forfeiture of $795 per month for 12 months, and a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 030508    Current ENL Term: 3 Years  ?????
Current ENL Service: 	04 Yrs, 11Mos, 26Days Includes 1254 days of excess leave (050923-090227)
Total Service:  		04 Yrs, 11Mos, 26Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 92F10/Petroleum Supply Spc   GT: 109   EDU: GED   Overseas: Germany, SWA   Combat: Iraq (dates not in file)
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Glendale, AZ
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 29 November 2004, the applicant was found guilty by a special court-martial of being disrespectful in deportment towards an NCO (040722), dereliction of duty by locking and loading a weapon while in the barracks (040722), destruction of military property (040807), while in a combat zone feign mental derangement to avoid service (040808), and disorderly conduct (050807).  He was sentenced to reduction to E-1, confinement for 12 months, forfeiture of $795 per month for 12 months, and a bad conduct discharge.  
       On 7 June 2005, the sentence was approved except for the part extending to the bad conduct discharge.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 29 February 2008, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 25 September 2008, 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, 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’s mother contends her son needs urgent help because he is homeless and was unfairly treated by the Army.  However, the record indicates the applicant while deployed to Iraq engaged in serious misconduct for which he was tried and convicted by a special court martial.  The applicant provides no documentation or credible evidence to substantiate his claim.  The government enjoys a presumption of regularity in the conduct of its affairs and 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 mistreated or that he suffered from PTSD or any other medical condition.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for clemency.   
       
       In view of the aforementioned, and after a thorough review of the applicant’s record and the issue and document submitted with his 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: 3 September 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: dd Form 214 and a self-authored statement.

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 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 AR20090020530
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