Applicant Name: ????? Application Receipt Date: 2010/11/18 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, "I was told that my discharge could be overturned/upgraded after 2 years." 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: 980930 Discharge Received: Date: 980106 Chapter: 3, Sec IV AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: B Company, 2nd Battalion, 22nd Infantry, 10th Mountain Division (Light Infantry), Fort Drum, NY Time Lost: Military confinement for a total of 72 days, (961001 - 961212). Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 18 Current ENL Date: 940818 Current ENL Term: 4 Years ????? Current ENL Service: 6 Yrs, 2 Mos, 6 Days ????? Total Service: 6 Yrs, 2 Mos, 6 Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 11B10 Infantryman GT: 103 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: NDSM, ASR V. Post-Discharge Activity City, State: Steelton, PA Post Service Accomplishments: None VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 30 September 1996, the applicant was found guilty of stealing $2,200.00, making a false sworn statement 2 specifications, and assaulting SPC W, by a special court-martial and sentenced to be discharged with a Bad Conduct Discharge, confinement for three months, and forfeiture of $400.00 pay per month for three months. On 24 January 1997 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. The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 25 September 1997, 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. 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 analyst noted the applicant’s issue about his request for an automatic upgrade. However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. Additionally, the applicant has provided no evidence that he should not be held responsible for his misconduct. 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: 22 July 2011 Location: Washington, D. C. Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: DD Form 293 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 determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change NA No change NA (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: NA 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 AR20100028041 ______________________________________________________________________________ Page 2 of 3 pages