Applicant Name:  ?????

Application Receipt Date: 2010/12/06	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect that he had ineffective counsel, his JAG withheld information.  He further discusses issues about his wife being pregnant, she having an affair and conceiving a child that was not his supporting his allegation of infidelity.  His award and decorations were not considered during his court-martial as well as his service in the Idaho National Guard.  He states that the command was derelict in their duties and he was discharged based on one isolated incident. 

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: 040220   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: B Co, 2-34 AR, Ft Riley, KS 

Time Lost: AWOL x2 as annotated on the DA Form 4187s (010405-010407), 3 days returned to unit; (010410-010918),161 days, apprehended.  None of the AWOL dates are annotated on the DD Form 214.  Only confinement dates are annotated on the DD Form 214, (010919-011227) 71 days, 

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

Courts-Martial (Charges/Dates/Punishment): 011026, SPCM, desertion, AWOL, disrespect toward a superior commissioned officer, violating a general regulation or order, assault consummated by battery and aggravated assault with a dangerous weapon; reduced to E1, forfeit $500 pay per month for four months, confined for four months and discharged from the service with a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 001221    Current ENL Term: 4 Years  ?????
Current ENL Service: 	3 Yrs, 00Mos, 30Days ?????
Total Service:  		11 Yrs, 11Mos, 09Days Includes 785 days excess leave (011228-040220)
Previous Discharges: 	RA 981221-001220/HD Immediate reenlistment
                                       ARNG 950207-981220/HD
                                       ARNG 900119-941201/GD
                                       IADT 900330-900712/UNC
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 19K10 Armor Crewman   GT: NIF   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: ARCOM, AAM, NDSM, ASR

V.  Post-Discharge Activity
City, State:  Jerome, ID
Post Service Accomplishments: None submitted



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 26 October 2001, the applicant was found guilty by a special court-martial of desertion, AWOL, disrespect toward a superior commissioned officer, violating a general regulation or order, assault consummated by battery and aggravated assault with a dangerous weapon.  He was sentenced to be discharged with a Bad Conduct Discharge, confined for four months and reduced to E1.  
       
       On 5 February 2002, 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 5 February 2002, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 5 September 2003, 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 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.  
       
       Furthermore, the analyst noted the applicant's issue that his command was derelict in their duties; however, 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.  
       
       Further, the analyst noted the applicant issue of a single incident; however, the record reveals that the applicant had many discrediting entries constituting a departure from the standards of conduct expected of Soldiers in the Army. The analyst having examined all the circumstances determined that the applicant's acts of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge or a general, under honorable conditions. 
       
       The applicant was discharged under the provisions of Chapter 3, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Court-Martial, Other", and the separation code is "JJD."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.     
       
       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 February 2011         Location: Dallas, TX

Did the Applicant Testify?  Yes     No  

Counsel:  [ redacted ]

Witnesses/Observers:  [ redacted ] 

Exhibits Submitted: DD Form 214, Special Court-Martial Order, Character reference letters (6 pages), Certificates from Professional Trucking School (3 pages), 15 pages from OMPF, 3 pages from Sheriff's Office, 5 pages of emails, 4 pages of documents from Inspector General, 4 pages from District Court of Geary County, KS, 

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 applicant’s length and quality of his service to include his post service accomplishments and  as a result it is inequitable.  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 4    No change 1
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: No Change
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 AR20100029391
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