Applicant Name:  ?????

Application Receipt Date: 2011/12/20	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that the reason he feels his discharge should be overturned is because he did not receive the proper medical attention required. He served the US Army with honor and deployed to help fight for our country. In regards to his discharge he recently received a payout from the US Army defense finance, indicating he was not a bad soldier. He believes to this date that he deserves the proper medical attention needed.  He was diagnosed with PTSD, anxiety disorder, sleep apnea, TBI, kidney stones, worms in his stomach, irritable bowel syndrome, staph ( skin infection) and severe headache that impair his vision.  He completed his military duty and hopes that now the military and VA can overlook the bad and see the good that he contributed to our country. With this being said he asks that his discharge be overturned even though he was confined and served his time, he feels in his heart that he deserves a second chance.  He requests an upgrade of his discharge to honorable.

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: 090910   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: C Co, 1-64 IN Rgt, Fort Stewart, GA 

Time Lost: Total of 656 days:  AWOL for 478 days (061003-080123), apprehended; military confinement for 178 days (080819-090212).

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

Courts-Martial (Charges/Dates/Punishment): 080819, AWOL (061003-080123), confinement for 8 months, reduction to E-1 and a bad conduct discharge (SPCM)

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 030109    Current ENL Term: 6 Years  ?????
Current ENL Service: 	04 Yrs, 10 Mos, 17 Days Includes 210 days of excess leave (090213-090910)
Total Service:  		04 Yrs, 10 Mos, 17 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 19K10/Armor Crewman   GT: 116   EDU: HS Grad   Overseas: SWA   Combat: Iraq (050118-060107)
Decorations/Awards: AGCM, NDSM, GWOTEM, GWOTESM, ASR, OSR, CAB

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 19 August 2008, the applicant was found guilty by a special court-martial of being absent without leave (AWOL) for a period of 113 days (061003-080123).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 8 months, and reduction to E-1.  
       
       On 6 January 2009, 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 and on 23 July 2009, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       The sentence having been affirmed and complied with pursuant to Article 71c, the bad conduct 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 the 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.  
       
       Furthermore, the analyst noted the medical documents from the Veterans Administration and the diagnosis of mild traumatic brain injury; however, in review of the applicant's entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted.  Moreover, the applicant contends he was suffering from numerous medical conditions and received no treatment for them.  However, the analyst found no evidence of arbitrary or capricious actions by the command and the analyst 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.  
       
       Finally, the analyst acknowledges the applicant's in service accomplishments as stated in his application.  However, the analyst did not find the said issue sufficiently mitigating to warrant clemency. 
       
       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: 13 June 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, orders, medical documents, enlistment contract, DA Forms 4187, charge sheet, AWOL documents, SPCM documents, leave forms, and DA Form 2-1.

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:




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 AR20120000405
______________________________________________________________________________


Page 1 of 3 pages