Applicant Name:  ?????

Application Receipt Date: 2012/02/29	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that although he was innocent of the charges he pled guilty due to extenuating circumstances.  He is now having trouble finding employment and has no medical coverage.  He had always wanted to join the military and after convincing his wife that he wanted to join he swore in on 17 April 2011.  He met EF in Alaska and they became close friends.  EF married the applicant’s sister-in-law and agreed that EF and his wife would live with the applicant and wife and that EF would pay $400 a month rent starting in September.  EF stopped paying the rent; and the applicant asked him to pay the rent from September through February.  EF gave the applicant his debit card and told him to get about $1500 worth of stuff or take money out and he would pay the applicant the rest on 15 June.  The applicant proceeded to purchase $800 worth of items and took $200 out in cash.  The applicant then went on mission and when he returned EF told him that someone had stolen money from his card.  An argument ensued and the applicant was taken to the MP station.  After explaining the situation the applicant was released to his Lieutenant.  He returned the items that he could.  He became alienated within the unit because everybody thought he was a thief.  He was provided legal representation and paid EF back the $1000.  He was ultimately court-martialed and sentenced on the 16th of September.   

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: 090916
Discharge Received: 			   Date: 100906   Chapter: 3     AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: 593d Transportation Company, Joint Logistics Task Force 57, Camp Arifjan, Kuwait 

Time Lost: Military Confinement, for 83 days (090916 - 091208)

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

Courts-Martial (Charges/Dates/Punishment): 090916, stole a digital camera, a memory card, hygiene supplies, and a bottle of cologne, of a value of more than $500, the property of AAFES (090701-090715);stole money, of a value of less than $500, the property of the National Bank of Kuwait (090701-090715); with intent to defraud, falsely made the signature of PFC EJF as endorsement to a credit card transaction, which said signature would, if genuine apparently operate to the legal harm of another; discharged with a Bad Conduct Discharge, confinement for 110 days, and reduction to E-1; (Special)   

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 081229    Current ENL Term: 6 Years  ?????
Current ENL Service: 	1  Yrs, 8  Mos, 7    Days ?????
Total Service:  		3  Yrs, 1  Mos, 20  Days ?????
Previous Discharges: 	RA 070424 - 081228/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 88M10 Motor Transport Op   GT: 98   EDU: HS Grad   Overseas: SWA   Combat: Kuwait (dates are NIF)
Decorations/Awards: NDSM, GWOTSM, ASR


V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 16 September 2009, the applicant was found guilty by a special court-martial of stealing a digital camera, a memory card, hygiene supplies, and a bottle of cologne, of a value of more than $500, the property of AAFES (090701-090715); stealing money, of a value of less than $500, the property of the National Bank of Kuwait (090701-090715); with intent to defraud, falsely made the signature of PFC EJF as endorsement to a credit card transaction, which said signature would, if genuine apparently operate to the legal harm of another .  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 110 days, and reduction to E-1.  The automatic forfeiture of two-thirds of all pay was deferred (091001) and was terminated (091125).  The applicant was credited with four days of confinement.  
       
       On 25 November 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.  On 26 May 2010, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence 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 analyst noted the applicant's issues of employment and medical coverage; however, the Board does not grant relief solely for the purpose of gaining or enhancing employment opportunities or receiving benefits of any type.
       
       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: 8 August 2012         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with a self-authored statement, copy of ID card, 10 letters of support, Special Court-Martial Order #53 and a DD Form 214.

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: No Change
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 AR20120004550
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