Applicant Name:  ?????

Application Receipt Date: 2012/05/05	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "I am a former US Army enlisted member.  I am writing this letter on my own behalf for a request of an upgrade of my discharge.  While I was in the military it taught me discipline that I now realize is vital for success in the world.  However, this realization didn’t occur to me while engaged in military life.  The mistakes I made were out of confusion and lack of knowledge.  Since being out of the military, I’ve had the chance to speak with many different people who understand the structure of the military.  I’ve also been able to see how my discharge, as well as my actions, affect me personally and professionally.  I am ready to return to military life and to be fully engaged in it."

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: 080626
Discharge Received: 			   Date: 090828   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: E Co, 4th BCT (R)(P), 101st Abn Div (R)(P), Fort Campbell, KY 

Time Lost: AWOL x 1 for 33 days (080114-080215), mode of return unknown; Confinement Military Authorities for 23 days (080609-080701), pre-trial confinement.  Total time lost 56 days.

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

Courts-Martial (Charges/Dates/Punishment): SPCM, 080628, AWOL (080114-080215), wrongful use of marijuana beweeen (071027 and 071127), and possession of cocaine and crack cocaine with intent to distribute (080313), bad-conduct discharge; reduction to E1; forfeiture of $898.00 pay per month for six months; and confinement for 35 days.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 070320    Current ENL Term: 03 Years  22 Weeks
Current ENL Service: 	02 Yrs, 03  Mos, 14  Days Includes 417 days of excess leave (080708-090828)
Total Service:  		02 Yrs, 03  Mos, 14  Days ?????
Previous Discharges: 	None
Highest Grade: E2		Performance Ratings Available: Yes    No 
MOS: None   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: None

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 26 June 2008, the applicant was found guilty by a special court-martial of going AWOL (080114 to 080215), wrongfully using marijuana between (07101-27 and 071127), and wrongfully possessing some amount of cocaine and crack cocaine, with intent to distribute.  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 35 days, reduction to E-1, and forfeiture of $898.00 pay per month for six months.  
       
       On 11 September 2008, the sentence was approved, and except for that part extending to a bad-conduct discharge was executed.  The applicant was credited with twenty-five (25) days confinement credit against the sentence of confinement.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 9 January 2009, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 2 July 2009, the sentence was affirmed and complied with pursuant to Article 71c, and the bad-conduct 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 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 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 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: 28 September 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, Self-Authored Statement, Special Court-Martial Order, dated 2 July 2009, Letter of Support, dated February 2012 and , dated 20 April 2012, and 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 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: 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 AR20120009182
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