Applicant Name:  ?????

Application Receipt Date: 2012/02/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant signed the DD Form 293 and indicated “see attached.”  The attached documents consist of a letter from his mother to the Board in which she states that he suffers from PTSD and TBI and provides a description of the symptoms he is suffering.  She believes his symptoms are directly related to his combat service.  They request an upgrade of the discharge to general under honorable conditions in order to receive VA benefits and state that his father retired from the Army as a CW4.

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: 060331   Chapter: 3     AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: A Co, 2d Bn, 69th Armored Regiment, Fort Benning, GA 

Time Lost: 98 days, military confinement (031107-040212)

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

Courts-Martial (Charges/Dates/Punishment): 031212, failed to report to his designated place of duty on divers occasions, disobeyed a lawful order from a commissioned officer on divers occasions, with intent to deceive provided a false statement, wrongfully used marijuana, wrongfully possesed 90 pills of Xanax, a controlled substance, while under the legal drinking age of 21, wrongfully drove a motor vehicle while his blood alcohol concentration was greater than .02 grams within three hours of driving.  The sentence consisted of forfeiture $767.00 pay per month for 6 months; to be confined for 6 months; and to be discharged from the Service with a bad-conduct discharge.  Only so much of the sentence as provided for confinement for 4 months, forfeiture of $767.00 pay per month for 6 months, and discharge from the service with a bad-conduct discharge was approved and, except for that part of the sentence extending to a bad-conduct discharge, was executed (SPCM) 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 011025    Current ENL Term: 3 Years  ?????
Current ENL Service: 	04 Yrs, 02 Mos, 00 Days Includes 778 days of excess leave (040213-060331)
Total Service:  		04 Yrs, 02 Mos, 00 Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 19K10/Armor Crewman   GT: 120   EDU: GED   Overseas: None   Combat: Applicant claims he served in Iraq; however, this information is not contained in his OMPF
Decorations/Awards: NDSM, AFEM

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 12 December 2003, the applicant was found guilty by a special court-martial of the following charges and specifications:
       
       1.  At or near Ft. Benning, GA, on divers occasions, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: Unit 0630 accountability and PT formations at the Battalion motor pool on 16, 17,21,22, and 23 Oct 03. 
       
       2.  Having received a lawful command from LTC S, his superior commissioned officer, then known by the said PVT C, to be his superior commissioned officer, to serve extra duty for 45 days, or words to that effect, did, at Ft. Benning, GA, on various and divers occasions from on or about 16 Sep 03 to on or about 31 Oct 03, willfully disobeyed the same, to wit: 19,20,21,23, and 24 Sep 03, and on divers occasions after 6 Oct 03. 
       
       3.  Having received a lawful command from LTC S, his superior commissioned officer, then known by the said PVT C to be his superior commissioned officer, not to leave the limits of Kelley Hill, or words to that effect, did, at Custer Road near 1-185, Ft. Benning, GA, on or about 24 Oct 03, willfully disobeyed the same. 
       
       4.  At Ft. Benning, GA, on or about 21 Oct 03, with intent to deceive, made to SGT C, an official statement, to wit: that he had quarters from getting his wisdom teeth pulled, which statement was totally false, and was then known by him to be so false. 
       
       5.  At an unknown location, between on or about 15 Sep 03, and on or about 29 Sep 03, wrongfully used marijuana. 
       
       6.  At or near Wal-Mart in Enterprise, AL, on or about 5 Aug 03, wrongfully possessed 90 pills of 2mg Xanax (Alprazolam), a Schedule IV Controlled Substance. 
       
        7.  At or near Ft. Benning, GA, a place under exclusive federal jurisdiction, on or about Friday 24 Oct 03, while under the legal drinking age of 21, wrongfully drove a motor vehicle while his blood alcohol concentration was greater than .02 grams within three hours of driving. This is in violation of O.C.G.S. 40-6-391(k)(l) assimilated into Federal law by 18 U.S. Code.
       
       The sentence was adjudged on 12 December 2003 and consisted of forfeiture $767.00 pay per month for 6 months; to be confined for 6 months; and to be discharged from the Service with a bad-conduct discharge.  Only so much of the sentence as provided for confinement for 4 months, forfeiture of $767.00 pay per month for 6 months, and discharge from the service with a bad-conduct discharge is approved and, except for that part of the sentence extending to a bad-conduct discharge, will be executed.
       
       On 6 February 2004, the sentence was approved.  The record of trial was sent to The Judge Advocate General of The Army for review by the Court of Military Review.  On 9 February 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 31 March 2006, 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 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 record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.
       
       Furthermore, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  
       
       Finally, eligibility for veteran's benefits to include medical and 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.
       
       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: 20 April 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: List of PTSD and TBI symptoms, medical record, mother's letter to the Board, and court-martial order.













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 AR20120003355
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