Applicant Name: ????? Application Receipt Date: 2012/01/23 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he completed two enlistment periods and two overseas tours which included service in Kosovo and Bosnia. He requests an upgrade of his discharge to general under honorable conditions. 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: 020913 Chapter: 3, Section IV AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: HHC, 12th AV Bde, Wiesbaden, Germany Time Lost: Military confinement for 55 days (000919-001112). Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): 000919, without authority left his place of duty (000505), failed to report (000505), disobeyed a lawful order from a commissioned officer (000904), with intent to deceive provided a false statement (000425). Punishment consisted of confinement for two months, reduction to E-1 and a bad conduct discharge (SPCM). Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 22 Current ENL Date: 970717 Current ENL Term: 3 Years 7 months (Extended for convenience of the government) Current ENL Service: 05 Yrs, 00 Mos, 00 Days Includes 572 days of excess leave (010219-020913) Total Service: 09 Yrs, 07 Mos, 25 Days ????? Previous Discharges: RA 921124-950418/HD RA 950419-970716/HD Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 92Y10/Unit Supply Spc GT: NIF EDU: HS Grad Overseas: Bosnia, Kosovo Combat: None Decorations/Awards: JSAM, NDSM, 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 evidence of record shows that on 19 September 2000, the applicant was found guilty by a special court-martial of leaving his place of duty without authority (000505), failing to report to his designated place of duty (000505), disobeying a lawful order from a commissioned officer (000424), and with providing a false statement with intent to deceive (000425). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for two months and reduction to E-1. On 10 January 2001, 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 and on 7 June 2002, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. The sentence having been affirmed and complied with pursuant to Article 71c, 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, the issue and the 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 acknowledges the applicant's in service accomplishments which included service in Bosnia and Kosovo as stated in his application. However, the analyst did not find the said issue sufficiently mitigating to warrant clemency. After a thorough review of the applicant’s records and the issue 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: 7 May 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: None VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh and clemency is warranted based on the overall length (over 9 years of service) and quality of the applicant’s service (two prior honorable discharges and a Joint Service Achievement Medal), and his combat service (Bosnia and Kosovo). Accordingly, the Board voted to grant clemency and 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 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: EDGAR J. YANGER 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 AR20120001759 ______________________________________________________________________________ Page 1 of 3 pages