Applicant Name:  ?????

Application Receipt Date: 2012/04/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect that his unit treated him unfairly and they were doing a lot of illegal things under the table.  He feels they forced him into doing things he did not want to do.

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: 100415   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: HHC, 4th Bde, 2ID, Fort Lewis, WA 

Time Lost: AWOL (080905-090325) for 201 days (unknown mode of return)

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 050831    Current ENL Term: 03 Years  21 Weeks
Current ENL Service: 	04 Yrs, 00 Mos, 24 Days ?????
Total Service:  		04 Yrs, 00 Mos, 24 Days (includes involuntary excess leave (090602-100415) for 318 days)
Previous Discharges: 	None
Highest Grade: NIF		Performance Ratings Available: Yes    No 
MOS: 42A (Human Resources Spec)   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM; GWOTSM; ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       After a careful review of all the applicant’s military records and the issue and document submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The only pertinent evidence available for review regarding the applicant's discharge is the DD Form 214, Certificate of Release or Discharge from Active Duty, which was not authenticated by the applicant.  The DD Form 214 shows the applicant was discharged under the provisions of Chapter 3, AR 635-200, pursuant to an approved sentence adjudged by a special court-martial empowered to adjudge a bad conduct discharge,  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Absent any record of trial, the applicant was clearly sentenced to be discharged with a Bad Conduct Discharge that procedurally received an appellate review that was completed and the sentence affirmed and ordered duly executed.  
       Although there is no record of the approved sentence and the subsequent appellate review, procedurally, the record of trial would have been forwarded to The Judge Advocate General of The Army for review by the Court of Military Review, and the United States Army Court of Military Review would have affirmed the approved findings of guilty and the sentence, and subsequently, the sentence would have been affirmed and complied with pursuant to Article 71c, and that 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:  
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  
       
       The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 3, AR 635-200, pursuant to an approved sentence of a bad conduct discharge that was adjudged by a court-martial.  Furthermore, the DD Form 214 shows a Separation Code of JJD (i.e., for Court-Martial, Other) with a reentry eligibility (RE) code of "4." After a careful review of all the applicant’s military records and the issue and documents submitted with the application, the analyst found no mitigating factors that would warrant clemency.  
       
       While the evidence of record indicates the applicant was adjudged guilty by a court-martial and that the sentence was approved by the convening authority and by the appellate review process, the 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.  
       
       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: 14 September 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 10 February 2012; DD Form 214 for service under current review.




VIII.  Board Discussion, Determination, and Recommendation
While the applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army, the Board noted that the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which was not authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.  The Board, being convinced that the reason for discharge and the characterization of service were proper and equitable, 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 AR20120007664
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