Applicant Name:  ?????

Application Receipt Date: 2010/10/22	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states effect “I do not believe I was properly represented by my JAG appointed attorney. I feel I was forced to sign a guilty plea”

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: 080219   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: 95th Chemical Co., 17th Combat Sustainment Support Bn, Ft. Richardson, AK 

Time Lost: Military confinement (070426-071027) 185 days.

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

Courts-Martial (Charges/Dates/Punishment): 070629 special court-martial for on divers occasions, between on or about 9 December 2006 and on or about 13 January 2007 wrongfully used cocaine; and on divers occasions, between on or about 9 December 2006 and on or about 13 January 2007 wrongfully distributed some amount of cocaine. Sentenced to reduction to E-1, confinement for eight months and to be discharged from the service with a Bad Conduct Discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 060420    Current ENL Term: 3 Years  22 weeks
Current ENL Service: 	01 Yrs, 03Mos, 28Days ?????
Total Service:  		01 Yrs, 03Mos, 28Days Includes 100 days of excess leave (071112-080219)
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 25B10 Info Sys Opr-Analyst   GT: NIF   EDU: Some Junior College   Overseas: Alaska   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Marana, AZ
Post Service Accomplishments: Nothing provided by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that the applicant was found guilty by a special court-martial of wrongfully using cocaine and  wrongfully distributing some amount of cocaine.  She was sentenced to be discharged with a Bad Conduct Discharge, confinement for eight months, and reduction to E-1.  
       
       On 29 June 2007, the sentence was approved.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 26 October 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 26 October 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 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. Further, the applicant contends that she was forced to sign a guilty plea; however, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.  After a thorough review of the applicant’s record and the issue and self-authored statement 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: 25 February 2011          Location: Dallas, TX

Did the Applicant Testify?  Yes     No  

Counsel:  [ redacted ]

Witnesses/Observers: [ redacted ] 

Exhibits Submitted: Self-authored statement and DD Form 214

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing her testimony, her fathers and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh, and clemency is warranted based on the overall quality of the applicant’s service, her testimony and an act of mercy by the board.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to under other than 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 3    No change 2
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 AR20100026295
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