Applicant Name:  ?????

Application Receipt Date: 2011/10/19	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "I was discharged after an argument with my NCO at no point did it become physical and I never threatened harm to him.  I am asking that my discharge status be upgraded."

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: 021218
Discharge Received: 			   Date: 050401   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: F Trp, 1/10th Cav, Fort Hood, TX 

Time Lost: Confinement military authorities x 2 for 109 days: 45 days (020614-020728) and 64 days (020729-020930), result of SPCM.

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): 021218, SPCM, Leaving his appointed place of duty (020611 and 020611), disobeying a lawful command from a superior commissioned officer, disobeying a lawful command from a noncommissioned officer x 2, violating a lawful general regulation x 2, and stealing US Army property valued less than $500.00 between (020204-020611).  Punishment consisted of confinement for eight months, forfeiture of $500.00 pay per month for eight months, and a Bad Conduct Discharge. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 001024    Current ENL Term: 03 Years  ?????
Current ENL Service: 	04 Yrs, 01  Mos, 19  Days Includes 914 days of excess leave (021001-050401)
Total Service:  		04 Yrs, 01  Mos, 19  Days ?????
Previous Discharges: 	None
Highest Grade: E1		Performance Ratings Available: Yes    No 
MOS: 63S10/Heavy Wheel Vehicle Mechanic   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, 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 29 July 2002, the applicant was found guilty by a special court-martial of leaving his appointed place of duty (020611 and 020611), disobeying a lawful command from a superior commissioned officer, disobeying a lawful command from a noncommissioned officer x 2, violating a lawful general regulation x 2, and stealing US Army property valued less than $500.00 between (020204-020611).  He was sentenced to confinement for eight months, forfeiture of $500.00 pay per month for eight months, and a bad conduct discharge.
       
       On 18 December 2002, only so much of the sentence as provided for forfeiture of $500.00 pay per month for eight months, confinement for four months, was approved, and except for the portion extending to a bad conduct discharge was ordered to be executed.  The applicant was credited with 45 days of confinement toward his 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.  
       
       On 2 April 2004, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 13 January 2005, 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 characterization of his 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 he was discharged after having an argument with his noncommissioned officer, however, the analyst concluded that the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  Having examined all the circumstances, the analyst determined that the applicant’s numerous incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  
       
       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 issues 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: 2 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293.

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 0
(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 AR20110020955
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