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 his wife at the time was pregnant by another service member and after the last four years of poverty and despair he would like to live a normal life.  He contends being young.  He further contends the duration of service versus the length and severity of the punishment.  

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: 	NIF   Date: NIF
Discharge Received: 			   Date: 080912   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other 	   RE:     SPD: JJD   Unit/Location: HHD, 168th Medical Bn (AS), APO AP 96271 

Time Lost: AWOL x 2 for a total of 37 days (070104-070121) for 18 days, mode of return unknown; (070202-070220) for 19 days, mode of return unknown; confinement/military authorities for 206 days (070222-070918).  Total time lost 243 days. 

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

Courts-Martial (Charges/Dates/Punishment): 070330, SPCM, without authority, absented himself from his unit (AWOL) x 2 (070202-070221), (070104-070122); without authority, failed to go to his appointed place of duty (070130-070131); willfully disobeyed a lawful command from a superior commissioned officer x 3 (061229, 061229, 061229);  wrongfully have sexual intercourse with Ms. HMC, a woman not his wife (060301); reduction to E-1, forfeiture of $867 pay x 7 months, confinement for 7 months and a bad conduct discharge.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 061102     Current ENL Term: 06 Years  ?????
Current ENL Service: 	03  Yrs, 06  Mos, 23  Days ?????
Total Service:  		03  Yrs, 06  Mos, 23  Days includes 359 days of excess leave (070920-080912) 
Previous Discharges: 	RA-050616-061101/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 68X10 Mental Health Spec   GT: 114   EDU: 11 Years   Overseas: Korea   Combat: None
Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, OSR

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 30 March 2007, the applicant was found guilty by a special court-martial of without authority, absenting himself from his unit (AWOL) x 2 (070202-070221), (070104-070122); without authority, failing to go to his appointed place of duty (070130-070131); willfully disobeying a lawful command from a superior commissioned officer x 3 (061229, 091229, 061229); wrongfully having sexual intercourse with Ms. HMC, a woman not his wife (060301).  He was sentenced to reduction to E-1, forfeiture of $867 pay x 7 months, confinement for 7 months and a bad conduct discharge. 
       
       On 27 July 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 17 March 2003, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. 
       
       On 3 April 2008, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence 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.

       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, the  issues 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 that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence.  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.  By the misconduct (court-martial conviction), the applicant diminished the quality of his service below that meriting a fully honorable discharge.
       
       Although the applicant did not properly annotate the DD Form 293 requesting a review of his record for a possible upgrade of his discharge; he was given the benefit of this review as instructed in pertinent part (E.3.1.3.2) by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.
       
       The applicant contends his wife at the time was pregnant by another service member and after the last four years of poverty and despair he would like to live a normal life.  The analyst noted the applicant's contention; however, did not find said issue sufficiently mitigating to warrant an upgrade of the discharge under review. 
       
       The applicant further contends contends being young.  The applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.
       
       The applicant also contends the duration of service versus the length and severity of the punishment.  The applicant bears the burden of the presentation of substantial and credible evidence to support his contention.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his punishment was unjust.  
       
       The Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
       
       Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  After a thorough review of the applicant’s record and the application he submitted, 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, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (120319).

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 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: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

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 AR20120006710
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