Applicant Name:   

Application Receipt Date: 2011/05/31	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he feels that he was forced out of the military.  He made a poor decision during a stressful time in his adolescence.  He was denied the chance to prove himself and was seen as a traitor after his return from AWOL.

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: 080110   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Rear det, 2-69 AR Rgt, Fort benning, GA 

Time Lost: Total time lost is 182 days.  AWOL two times for 83 days (050103-050321 and 050512-050516), mode of return is unknown; military confinement for 99 days (050727-051102).

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

Courts-Martial (Charges/Dates/Punishment): 050727, on or about 3 January 2005, without authority and with intent to avoid hazardous duty, namely, deployment to OIF III, quit his unit, to wit: Charlie Company, 2-69th AR, 3/3d ID, located at Fort Benning, Georgia, and remained absent in desertion until on or about 21 March 2005; on or about 12 May 2005, without authority, absented himself from his unit, to wit: 2-69th AR(R), 3d Unit of Action (Rear), 3d ID, located at Fort Benning, Georgia, and remained absent until on or about 16 May 2005, confinement for four months and a bad conduct discharge (SPCM).

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 020806    Current ENL Term: 4 Years  ?????
Current ENL Service: 	04 Yrs, 11Mos, 10Days Includes 799 days of excess leave (051103-080110)
Total Service:  		04 Yrs, 11Mos, 10Days ?????
Previous Discharges: 	None
Highest Grade: E-1		Performance Ratings Available: Yes    No 
MOS: 13F10/Fire Spt Spc   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, 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 evidence of record shows that on 27 July 2005, the applicant was found guilty by a special court-martial of a charge of desertion in that he willfully quit his unit to avoid deployment (050103-050321) and of being AWOL (050512-051216).  He was sentenced to confinement for four months and a bad conduct discharge.    
       
       On 2 June 2006, the sentence was approved except for the portion referring to the bad conduct discharge.  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 23 June August 2007, the sentence having been affirmed pursuant to Article 71c 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, the issue 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 the applicant was adjudged guilty by a court-martial and that the sentence was approved by the convening authority.  
       
       The applicant is requesting that the reason for his discharge and characterization of the discharge be changed.  However, 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 applicant contends that during his adolescence he made a poor decision during a stressful time in his life.  However, the analyst noted that the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  He had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to his bad conduct discharge.
       
       Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the court-martial process.  
       
       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: 20 December 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Court-Martial order 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 and considering the analyst’s recommendation and rationale, the Board found no cause for clemency and therefore voted to deny relief.
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change NA    No change NA
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
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 AR20110011577
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