Applicant Name:  ?????

Application Receipt Date: 2012/04/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "The discharge of Bad Conduct is unwarranted because of a conflict with a soldier that had issues with me.  The replacement squad leader threatened me and I challenged him on that threat and I did not back down because the day before we had rolled over an lED and this was disturbing to say the least.  I served my country well and did not have any disciplines entered into my record at any other time.  How can one person who was not an officer and not the assigned squad leader have the power to ruin my military service.  Other soldiers witnessed this event.  In my opinion this was an over zealous soldier that did not know how to handle authority.  This action was a blatant attempt to exert his authority and power.  Myself and other soldiers have unfortunately had to suffer from actions of people like this yet we lay our life on the line without hesitation."

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: 050213
Discharge Received: 			   Date: 070725   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: C Co, 156th AR Bn, 256th BCT, 3d Inf Div, APO AE 

Time Lost: Confinement Military Authority 84 days (050213-050507), result of SPCM.  The reason for the time lost period of 148 days (050606-051031) is unknown, documents supporting this time was not found in the available records.  Records show the applicant was charged with going absent without leave (050510-050517), this period of time lost was not accounted for on the DD Form 214 under review.

Article 15s (Charges/Dates/Punishment): 030723, Wrongful use of a controlled substance (021215), reduction to E3; and forfeiture of $100.00, (FG).

Courts-Martial (Charges/Dates/Punishment): SPCM, 050213, Failing to report to his place of duty (041217), disobeying a lawful order from a noncommissioned officer (041217), being disrespectful in language towards a noncommissioned officer (041217), being disrespectful in deportment towards a noncommissioned officer (041217), and for the wrongful communication of a threat (041217).  Sentence consisted of bad conduct discharge; reduction to E1; and 3 months confinement. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 040515/OAD    Current ENL Term: NIF Years  ?????
Current ENL Service: 	02 Yrs, 06  Mos, 21  Days Includes 632 days of excess leave (051101-070725)
Total Service:  		05 Yrs, 07  Mos, 11  Days ?????
Previous Discharges: 	USAR-010425-010617/NA
                                       IADT-010618-010824/NA
                                       USAR-010825-020528/NA
                                       ADT-020529-020719/HD
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: 102   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (On or before 041204 (exact date unknown) to 050212)
Decorations/Awards: NDSM, ASR, AFRM-w/M Device

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 13 February 2005, the applicant was found guilty by a special court-martial of failing to report to his place of duty (041217), disobeying a lawful order from a noncommissioned officer (041217), being disrespectful in language towards a noncommissioned officer (041217), being disrespectful in deportment towards a noncommissioned officer (041217), and for wrongfully communicating a threat (041217).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 3 months, and reduction to E-1.  
       
       On 7 August 2005, the sentence was approved, and except for that part extending to a bad-conduct discharge was executed.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       The applicant was again found guilty by a special court-martial on 24 August 2005, of going absent without leave (050510-050517), resisting apprehension (050606), and wrongful possession of some amount of cocaine and marijuana (050606).  He was sentenced to be discharged with a Bad Conduct Discharge, forfeiture of $823.00 pay per month for 8 months, and confinement for 8 months.
       
       On 6 December 2005, only as much of the sentence as provides for forfeiture of $823.00 pay per month for 6 months, confinement for 6 months was approved, and except for that part extending to a bad-conduct discharge was executed.  The applicant was credited with eighty-four (84) days of confinement credit toward post-trial confinement.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 14 July 2006, the sentence of 13 February 2005, was affirmed and complied with pursuant to Article 71c, and the bad-conduct discharge was ordered to be executed.
       
       On 31 August 2006, the sentence of 24 August 2005, was affirmed, the applicant was credited with 84 days of comfinement againist the sentence to confinement.  Article 71c having been complied with, the bad-conduct discharge order was not issued as the applicant was previously discharged with a bad-conduct discharge as a result of a previous Special Court-Martial as ordere executed in Specialist Court-Martial Order Number 156, dated 14 July 2006. 

       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 and 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's were 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 applicant contends he served his country well and had no other misconduct in his record.  The analyst noted the applicant's contentions; however, noted the 
       
       The analyst noted the applicant's issue of wanting the rejoin the military, however, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 
       
       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: 3 October 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: State of Louisiana
                Department of Veterans Affairs
                Attn:  Mr. Barry R. Robinson

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, Copy of Special Court-Martial Order, dated 31 August 2006, DD Form 214 for the period of service under review.

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 0
Reason -     Change 0    No change 5
(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 AR20120008367
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