Applicant Name:  ?????

Application Receipt Date: 2010/07/19	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: " An upgrade is request in an effort to secure employment other than day labor work, so that I can have a solid foundation in a secure job setting and most importantly and in conjunction with my efforts helping the homeless in the [redacted] of Idaho.  I feel that I can re-commit to the community minded endeavor(s) I had set for myself during my two seasons working at the [redacted] service helping people to get their finances straighten out.  Having been a business administration mathematics tutor in the past is something that I would also like to continue.  Being unable to change the past doesn't mean that there is no hope for the future."

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: 040202
Discharge Received: 			   Date: 070713   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Howitzer Btry, 3/3d ACR, Fort Bragg, NC 

Time Lost: Confinement military authority 71 days (040202-040412) as the result of punishment received from the Special Court-Martial. 

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

Courts-Martial (Charges/Dates/Punishment): 040202, SPCM, Disrespectful in language toward a noncommissioned officer (040102), and assault on a noncommissioned officer (040102), sentenced to bad conduct discharge, confinement for 4 months, reduction to E-1.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 020801    Current ENL Term: 04 Years  ?????
Current ENL Service: 	04 Yrs, 09 Mos, 01 Days Includes 1186 days of excess leave (040414-070713)
Total Service:  		04 Yrs, 09 Mos, 01 Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 13B10/Cannon Crewmember   GT: NIF   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (Period of service not found in the available records).
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Nampa, ID
Post Service Accomplishments: None Listed






VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 2 February 2004, the applicant was found guilty by a special court-martial of being disrespectful in language towards a noncommissioned officer and assault on a noncommissioned officer (040102),  He was sentenced to reduction to Private (E-1), confinement for 4 months, and to be discharged from the service with a Bad Conduct Discharge.  
       
       On 23 November 2004, the sentence was approved, except for the part of the sentence extending to a bad conduct discharge was to be executed and the applicant was credited with 28 days of confinement against the sentence to confinement.  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.  
       
       On 2 November 2005, 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.  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 analyst noted the applicant's issue of wanting a upgrade of his discharge for the purpose of securing employment, however, 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 records, 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: 13 April 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel:  [redacted ]

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, Special Court Martial Order  Letters from ; [ redacted ] Services, [ redacted ] Mission (3), Chief, Congressional and Special Actions, Chief of Legislative Liaision Congressional Inquiry Division, Congress of the United States House of Representatives, dated 28 June 2010, email from Chief, Congressional and Special Actions, Special Court-Martial Order Numeber 26, dated 23 November 2004, Special Court-Martial Order Number [ redacted ], dated [ redacted ] 2005, Discharge Order, dated 9 July 2007, Document from the Department of Veterans Affairs (5), DD Form 214 for the period of service under review (4).

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 0    No change 0
(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 AR20100019390
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