Applicant Name:  ?????

Application Receipt Date: 2011/04/05	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his discharge is inequitable because it was based on one isolated incident and had he went to Fort Knox, KY, he would have received a general discharge, a step higher than a bad conduct discharge.  He did the honorable thing and went back to his unit to face whatever charges was given to him.  It's been over 10 years since his discharge and he remains felony free and a constant tax payer and father to his son.  This discharge is preventing him from receiving employment 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: NA
Discharge Received: 			   Date: 021107   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: 590th Field Service Company, 548th Corps Support Battalion, 10th Mountain Division (Light Infantry), Fort Drum, NY 

Time Lost: Desertion from (000807-010117) totaling 161 days, which was not shown on the DD Form 214, block 29 time lost.  The applicant surrendered to the military authorities.  Also, the applicant was confined by the military authorities as part of his punishment imposed from a Special Court-Martial from (010117-010319) for 63 days.  Total time lost was 224 days.  

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

Courts-Martial (Charges/Dates/Punishment): 010306, Special Court-Martial for desertion from (000807-010117).  He was sentenced to reduction to Private (E-1), forfeiture of $779.00 pay per month for four months, confinement for four months and a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 991104    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 7 Mos, 29 Days The net active service this period on the DD Form 214 block 12c is incorrect; should be as annotated above.  The computation also includes 598 days of excess leave from (010320-021107).
Total Service:  		2 Yrs, 7 Mos, 29 Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 57E10 Laundry and Bath Spec   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None submitted by the applicant.



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 6 March 2001, the applicant was found guilty by a special court-martial of desertion from (000807-010117).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 4 months, forfeiture of $779.00 pay per month for 4 months and reduction to Private E-1.  
       
       On 21 May 2001, 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 29 November 2001, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 15 August 2002, 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.  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 and the issue 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 that his discharge is inequitable because it was based on one isolated incident and had he went to Fort Knox, KY, he would have received a general discharge, which is a step higher than a bad conduct discharge.  Even though the applicant claims that it was a single incident, the analyst concluded that the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 
       
       Having examined all the circumstances, the analyst determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge.   
       
       Additionally, the analyst acknowledges the applicant's issue that he has remained felony free, a consistent tax payer and a father to his son since separation from active duty.  The applicant is to be commended for his efforts.  However, these accomplishments do not provide the Board a basis upon which to grant relief.  Further, 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 and the issue 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: 19 October 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 28 March 2011.

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 2    No change 3
Reason -     Change NA    No change NA
(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: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change














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 AR20110006581
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