Applicant Name:  ?????

Application Receipt Date: 2011/09/20	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, he received a BCD which was under circumstantial proof.  He had documentation that could prove his innocence.  Those documents were in a personal storage in El Paso, TX.  He was on PCS orders and he requested a DA Form 4187 in order to stop his departure to get his entire promotion packet.  He was not allowed to retrieve these documents.  

The promotion packet had been submitted and approved  through his commander and through the PSB Promotion Section in Vilseck, Germany.  The NCOIC of the PSB and the chief confirmed and affirmed that everything was in complete order to proceed and promote him [the applicant] from SGT (E-5) to SSG (E-6).  Without his promotion packet and DA 4187 in hand, the story could be different.  He should be innocent of all charges against him and retained the rank of SSG and not discharged from US Army.  

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: 	None   Date: None
Discharge Received: 			   Date: 090720   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: H Company, 561st Medical Company (Dental), Vilseck, Germany  

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 070612, SPCM, derelict in the performance of his duties x 2 (050404-051013); stole monies, miltary property of more than $500.00, the property of the U.S. Government (051013-060331); and wrongfully and without authority wore upon his uniform the insignia or grade of SSG (051013-060131).  He was sentenced to be discharged with a Bad Conduct Discharge.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  37
Current ENL Date: 051201    Current ENL Term: 03 Years  ?????
Current ENL Service: 	03 Yrs, 10 Mos, 07 Days ?????
Total Service:  		09 Yrs, 10 Mos, 08 Days ?????
Previous Discharges: 	RA-990913-020425/HD
                                       RA-020426-051131/HD includes a 6 month extension (051013)
                                      (Immediate Reenlistment)
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 42A10 Human Resources Specialist   GT: 120   EDU: 14 years   Overseas: SWA   Combat: Iraq (030311-031103)
Decorations/Awards: ARCOM-3, AAM-3, AGCM-2, NDSM, ICM-w/CS, GWOTSM, NCOPDR, ASR 

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed by the applicant
VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 29 November 2006, the applicant was found guilty by a special court-martial of dereliction in the performance of his duties x 2 (050404-051013); larceny of miltary property of more than $500.00, the property of the U.S. Government (051013-060331); and wrongfully and without authority wearing upon his uniform the insignia or grade of SSG (051013-060131).  He was sentenced to be discharged with a Bad Conduct Discharge.  
       
       On 12 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 24 November 2008, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 15 April 2009, the U.S. Court of Appeals for the Armed Forces, Washington, DC, denied the petition for grant of review of the decision by the U.S. Army Court of Criminal Appeals.
       
       On 7 May 2009, the sentence was affirmed and complied with pursuant to Article 71c, and the discharge 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.  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 he received a BCD which was based on circumstantial evidence.  He had documentation that could prove his innocence and was not allowed to retrieve it from storage.  The NCOIC of the PSB and the chief confirmed and affirmed that everything was in complete order to promote him.  He should be innocent of all charges against him and retained the rank of SSG and not discharged from US Army.  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 his issue.  There is no evidence in the record, nor has the applicant produced any evidence or documentation to support the contention that he was unjustly discharged.  Further, the U.S. Court of Appeals for the Armed Forces, Washington, DC, denied the petition for grant of review of the decision by the U.S. Army Court of Criminal Appeals.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  
             Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  Additionally, 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.  Additionally, 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.
       
       After a thorough review of the applicant’s records 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: 9 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form, 293, DD Form 214, and OMPF

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 0    No change 5
(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: 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 AR20110018856
______________________________________________________________________________


Page 1 of 4 pages