Applicant Name: ????? Application Receipt Date: 2011/05/23 Prior Review: Prior Review Date: 2011/04/13 Records Review I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable in order to obtain employment. He contends needing support with his mental health issues to become a more responsible asset to his community. 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: 070713 Chapter: 3 AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: Howitzer Btry, 3-3rd ACR, Time Lost: Confinement/Military Authorities for 71 days (040202-040412). Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): 040202, SPCM, disrespectful in language toward a noncommissioned officer (SGT) (040102), and assault on a noncommissioned officer (SGT) (040102); reduction to E-1, confinement for 4 months and a bad-conduct discharge. Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 29 Current ENL Date: 020801 Current ENL Term: 04 Years ????? Current ENL Service: 04 Yrs, 09 Mos, 01 Days ????? Total Service: 04 Yrs, 09 Mos, 01 Days Includes 1,186 days of excess leave (040414-070713) Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 13B10 Cannon Crewmember GT: NIF EDU: 13 Years Overseas: Southwest Asia Combat: Iraq (specific service dates NIF) Decorations/Awards: ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The specific facts and circumstances pertaining to the applicant's personal appearance case are not contained in the available records. However, the facts and circumstances from the applicant'sprevious record review case shows that on 2 February 2004, the applicant was found guilty by a special court-martial of disrespectful in language toward a noncommissioned officer (SGT) (040102), and assault on a noncommissioned officer (SGT) (040102). He was sentenced to reduction to E-1, confinement for 4 months, and a bad-conduct discharge. On 23 November 2004, the sentence was approved, except for the part of the sentence extending to a bad conduct discharge was to be executed and the applicant was credited with 28 days of confinement against the sentence to 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 2 November 2005, 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. 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 during the period of enlistment under review, the issues 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 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 general, under honorable conditions discharge. The applicant contends an upgrade of his discharge is needed in order to obtain employment. The Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. The applicant further contends needing support with his mental health issues to become a more responsible asset to his community. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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: 27 August 2012 Location: Chicago, IL Did the Applicant Testify? Yes No Counsel: Yes Witnesses/Observers: Yes Exhibits Submitted: DD Form 293, dated (0707130; Letter, Terry Reilly Health Services, dated (100616); Special Court-Martial Order Number 26, two (2) pages, dated (041123); and two (2) DD Forms 214, dated (070713). The applicant submitted two additional documents in support of his personal appearance hearing. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimonyand considering the analyst’s recommendation and rationale, the Board determined that clemency is warranted based on the circumstances surrounding the discharge (i.e., medical issues). Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. IX. Board Decision Board Vote: Character - Change 5 No change 0 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 AR20110011261 ______________________________________________________________________________ Page 1 of 3 pages