Applicant Name:  ?????

Application Receipt Date: 2011/05/23	Prior Review:     Prior Review Date: 2011/04/13  Records Review  

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable in order to obtain employment.  He contends needing support with his mental health issues to become a more responsible asset to his community. 

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: 070713   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Howitzer Btry, 3-3rd ACR, 

Time Lost: Confinement/Military Authorities for 71 days (040202-040412).   

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

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

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 ?????
Total Service:  		04  Yrs, 09  Mos, 01  Days Includes 1,186 days of excess leave (040414-070713)
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 13B10 Cannon Crewmember   GT: NIF   EDU: 13 Years   Overseas: Southwest Asia   Combat: Iraq (specific service dates NIF)
Decorations/Awards: ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The specific facts and circumstances pertaining to the applicant's personal appearance case are not contained in the available records.  However, the facts and circumstances from the applicant'sprevious record review case shows that on    2 February 2004, the applicant was found guilty by a special court-martial of disrespectful in language toward a noncommissioned officer (SGT) (040102), and assault on a noncommissioned officer (SGT) (040102).  He was sentenced to reduction to E-1, confinement for 4 months, and 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 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 discharge.
       
       The applicant contends an upgrade of his discharge is needed in order to obtain employment.  The Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
       
       The applicant further contends needing support with his mental health issues to become a more responsible asset to his community.  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 and the application he submitted, 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: 27 August 2012         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: Yes 

Exhibits Submitted: DD Form 293, dated (0707130; Letter, Terry Reilly Health Services, dated (100616); Special Court-Martial Order Number 26, two (2) pages, dated (041123); and two (2) DD Forms 214, dated (070713).  The applicant submitted two additional documents in support of his personal appearance hearing.
 
VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimonyand considering the analyst’s recommendation and rationale, the Board determined that clemency is warranted based on the circumstances surrounding the discharge (i.e., medical issues).  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						
Board Vote:
Character - Change 5    No change 0
Reason -     Change 0    No change 0
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
?????













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 AR20110011261
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