Applicant Name:  ?????

Application Receipt Date: 2010/01/04	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect that he received an MBA and wants to enhance his job opportunities.

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: 071228   Chapter: 3    AR: 635-200
Reason: Court Martial, Other	   RE:     SPD: JJD   Unit/Location: 814th EN Co, Fort Polk, LA 

Time Lost: 42 days, military confinement (040322-040502).

Article 15s (Charges/Dates/Punishment): The applicant reported that he received three Articles 15 for disrespect and stealing at the PX.  The documentation is not contained in the record.

Courts-Martial (Charges/Dates/Punishment): 040723, SPCM, failure to report x 4 (030927, 031003, 031005, 031012), disrespect towards an NCO (031016), forfeiture of $795 for two months, confinement for two months, and a Bad Conduct Discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 010522    Current ENL Term: 3 Years  ?????
Current ENL Service: 	06 Yrs, 05Mos, 26Days Includes 1,306 days of Excess Leave (040607-071228)
Total Service:  		06 Yrs, 05Mos, 26Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 92Y10/Unit Supply Spc   GT: NIF   EDU: HS Grad   Overseas: None   Combat: Applicant stated during his testimony that he served in Iraq, not reflected in the official record.
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Kansas City, MO
Post Service Accomplishments: Applicant states he is graduating with his MBA in May 2010.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 March 2004, the applicant was found guilty by a special court-martial of failure to report to his designated place of duty on four occasions, and being disrespectful to an NCO.  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 2 months, and forfeiture of $795 for two months.  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.  The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence and on 17 July 2007, 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 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 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 he is about to graduate from a university with a Masters of Business Administration degree (MBA) and an upgrade would enhance his job opportunities.
       
       The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.
       
       The analyst acknowledges the applicant's successful transition to civilian life and noted his accomplishments outlined with the application and in the documents with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  
       
       After a thorough review of the applicant’s record 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: 22 June 2010         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: Resume and cover letter, personal statement to expedite the processing of his request, court-martial results and allied documents, unofficial transcript from Baker University, two character reference letters.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that clemency is warranted based on the length and quality of his service to include his combat tour in Iraq and post service achievements.  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						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 0    No change 5
(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 AR20100007540
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