Applicant Name:  ?????

Application Receipt Date: 2011/10/25	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he would like an upgrade of his discharge so that he can reenlist

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: 040610
Discharge Received: 			   Date: 051031   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: HHC, 2122d GTSB, Fort Lewis, WA 

Time Lost: AWOL x 1 for 172 days (030720-040109), mode of return unknown; military confinement 146 days      (040610-041103), as a result of a Special-Court Martial.

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

Courts-Martial (Charges/Dates/Punishment): 040610, SPCM, AWOL (030720-040109), reduction to E1; forfeiture of $795.00 pay per month for six (6) months; confinement for six (6) months; and a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  35
Current ENL Date: 030205/OAD    Current ENL Term: NIF Years  ?????
Current ENL Service: 	01 Yrs, 10  Mos, 12  Days Includes 362 days of excess leave (041104-051031)
Total Service:  		12 Yrs, 00  Mos, 05 Days The DD Form 214 under review does not account for the applicant's prior periods of service; which is; 09 yrs, 10 mos, and 23 days. 
Previous Discharges: 	RA-930312-010518/HD
                                       ARNG-010519-020828/HD
                                       USAR-020829-030204/NA
                                        (Concurrent Service)
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 95B10/Military Police   GT: 101   EDU: GED   Overseas: Hawaii, Southwest Asia   Combat: NIF
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTSM, AFSM, NCOPDR, NATO MDL 

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 10 June 2004, the applicant was found guilty by a Special Court-Martial of going AWOL/Desertion (030720-040109).  
       
       He was sentenced to reduction to E-1, forfeiture of $795.00 pay per month for six (6) months, confinement for six (6) months, and a bad conduct discharge.
       
       On 22 September 2004, the sentence was approved except for the portion pertaining 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 25 June 2005, the sentence having been affirmed 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 during the period of enlistment under review 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 requests an upgrade of his discharge, inorder to reenlist, however, 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. 
       
       After a thorough review of the applicant’s records 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: 4 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 and Special Court-Martial Order, dated 30 June 2005.

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 1    No change 4
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 AR20110021534
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