Applicant Name:  ?????

Application Receipt Date: 2012/04/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that when he returned from Iraq he was told to go to the mental health clinic.  He spoke with a mental health counselor on a weekly basis and was referred to a combat stress group, which he also attended on a weekly basis.  He told the mental health worker that he was using marijuana to keep calm.  She told him that he was self-medicating and smoking pot was illegal she also told him it might not be a good idea to stop if it was keeping him calm.  He was prescribed medication to try instead of pot.  The mental health worker also told him could get a medical discharge from the Army, and he was not capable of making his own decisions.  

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: 080125   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: US Army, Headquarters and Headquarters Company, 4th Battalion, 64th Armor Regiment, 4th Brigade Combat Team, 3d Infantry Division, Fort Stewart, Georgia  

Time Lost: Military Confinement for 95 days (061109 - 070213).

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

Courts-Martial (Charges/Dates/Punishment): 061116, wrongfully used marijuana (060705 - 060804), (060805 - 0608031), (060901 - 060911), and (060912 - 061007); wrongfully possesed some amount of marijuana (061006); Bad Conduct Discharge, confinement for 4 months, and reduction to E-1; (SPCM)   

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 040218    Current ENL Term: 5  Years  16 Weeks
Current ENL Service: 	3  Yrs, 8  Mos, 3  Days 346 days excess leave (070214 - 080125)
Total Service:  		3  Yrs, 8  Mos, 3  Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 13F10 Fire Support Specialist   GT: 109   EDU: HS Grade   Overseas: NIF   Combat: NIF
Decorations/Awards: NDSM, 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 November 2006, the applicant was found guilty by a special court-martial of wrongfully using marijuana (060705 - 060804), (060805 - 0608031), (060901 - 060911), and (060912 - 061007); wrongfully possesing some amount of marijuana (061006).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 4 months, and reduction to E-1.  
       On 9 March 2007, 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 8 May 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 27 September 2007, the sentence was affirmed and 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.
       
       Issues Concerning Bad-Conduct Discharges (BCD): 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 of a medical problem, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.
       
       After a thorough review of the applicant’s records, 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: 12 September 2012         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293, 5 letters of support, OMPF documents 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 notwithstanding the analyst’s recommendation and rationale, the Board determined that clemency is warranted based  on the applicant’s combat service and the circumstances surrounding his misconduct and as a result it is inequitable .  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.
        
IX.  Board Decision						
Board Vote:
Character - Change 3     No change 2
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 AR20120006535
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