Applicant Name:  ?????

Application Receipt Date: 2010/08/20	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his dischare to fully honorable.  He contends that he was injured in basic training and placed on medical leave, while on medical leave he was erroneously placed in AWOL status.  He further contends that he paid into the GI Bill and would like to receive some school benefits. 

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: 	NIF   Date: NIF
Discharge Received: 			   Date: 100430   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: 1st Replacement Company, USAG, Fort Riley, KS 

Time Lost: Desertion/Confinement/Civil Authorities for 453 days (021015-040422), apprehended; Confinement/Military Authorities for 10 days (040616-040625).  Total time lost 463 days.

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

Courts-Martial (Charges/Dates/Punishment): 040616, SPCM, absent without leave and remained absent in desertion (021015-040422); reduction to E-1, forfeiture of $795 pay x seven (7) months, confinement for  seven (7) months, and a bad-conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  27
Current ENL Date: 020125    Current ENL Term: 03 Years  ?????
Current ENL Service: 	06  Yrs, 08 Mos, 19 Days ?????
Total Service:  		14  Yrs, 07 Mos, 23 Days includes 2,136 days of excess leave (040625-100430); block 12e on the DD Form 214 total prior inactive service, is incorrect and should read 06 Yrs, 06 Mos, 16 days. 
Previous Discharges: 	RA-940302-950719/HD
                                       USARCG-950720-020124/HD
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: NIF   EDU: 13 Years   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Houston, TX 
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 16 June 2004, the applicant was found guilty by a special court-martial of absenting himself in desertion (021015-040422). He was sentenced to reduction to E-1, forfeiture of $795 pay x seven (7) months, confinement for  seven (7) months, and a bad-conduct discharge.  
       
       On 28 October 2004, the sentence was approved.   The record of trial being forwarded to The Judge Advocate General of The Army for review by the Court of Military Review and the United States Army Court of Military Review affirming the approved findings of guilty and the sentence, are not part of the available record.  
       
       On 4 Augustl 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.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records during the period of enlistment under review, the issues 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 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 analyst is empowered to recommend a change to the discharge only if clemency is determined to be appropriate.  By the misconduct (court-martial conviction), the applicant diminished the quality of his service below that meriting a general, under honorable conditions or a fully honorable discharge.
       
             The applicant contends that he was injured in basic training and placed on medical leave, while on medical leave he was erroneously placed in AWOL status. The record does not support the applicant’s contention, and no evidence other than his statement has been submitted by the applicant to support his contention.  The applicant's statement alone does not overcome the presumption of government regularity and he has not provided any documentation or other evidence in support of his request for an upgrade his discharge. 
 
             Further, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
        
       The applicant also contends that he paid into the GI Bill and would like to receive some school benefits.  Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or 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.
       
       Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  After a thorough review of the applicant’s record, 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: 11 May 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (100720); Self-Authored Statement tow (2) pages; Letter, House of Representatives, dated (100728); Letter, Chief, Congressional and Special Actions,  dated (100819); Special Court-Martial Order Number 10, dated (041028); and a DD Form 214, dated (100430)  

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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None


















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 AR20100021883
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