Application Receipt Date: 061205	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See applicant's attached DD Form 293 and supporting documents.

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 050518
Discharge Received:     Date: 060526   
Chapter: 3    AR: 635-200
Reason: Court-Martial, Other
RE:     SPD: JJD
Unit/Location: A Company, 3d Battalion, 504th Parachute Infantry Regiment, 82d Airborne Division, Fort Bragg, NC 28310 

Time Lost: Absent without leave for a total of 139 days (041102-050320).  Applicant returned to military control at Fort Knox, KY.  Also he was confined by military authorities for a total of 102 days from (050518-050827), as a result of his Special Court-Martial on (050518).

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

Court-Martials (Charges/Dates/Punishment): 050518/Special Court-Martial-for being absent without authority from his unit on or about (041102) to on or about (050321) and wrongfully using marijuana between on or about (050222) to on or about (050322).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 4 months, and to be reduced to the grade of E1. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  820924  
Current ENL Date: 040108    Current ENL Term: 03 Years  ?????
Current ENL Service: 01 Yrs, 08Mos, 20Days (Includes 272 days of excess leave 050828-060526)
Total Service:  04 Yrs, 10Mos, 20Days ?????
Previous Discharges: RA-001108-040107/HD
Highest Grade: E5
Performance Ratings Available: Yes    No 
MOS: 11B1P (Infantryman)   GT: 96   EDU: GED   Overseas: Italy, Southwest Asia   Combat: Iraq (Exact dates not found in available records)
Decorations/Awards: AGCM, AAM, NDSM, ASR, OSR, CIB, Parachutist Badge (The applicant states that he was awarded the following awards in addition to the awards listed, which were not found in his record: ICM, GWOTSM, GWOTEM).
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: Applicant's states he has been in school for Emergency Medical Technician (EMT), and has received his North Caroline State Certification.  He is now in school for Paramedic training, has maintained a full time job, and has been a very active member of his local volunteer fire department and rescue squad. 

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      Evidence of record shows that on 18 May 2005, the applicant was found guilty by a special court-martial of absent without authority from his unit from on or about 2 November 2004 to on or about 21 March 2005, and wrongfully using marijuana between on or about 22 February 2005 and on or about 22 March 2005.  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 4 months, and to be reduced to the grade of E1.  On 24 August 2005, the sentence was approved and except for the part extending to a bad-conduct discharge, was ordered to be executed.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the United States Army Court of Criminal Appeals.  On 16 November 2005 , The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  On 8 March 2006, the sentence having been affirmed 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.

      c.  Response to Issues, Recommendation and Rationale:  
      After a careful review of all the applicant’s military records, the issue and documents he submitted, 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 clearly shows that the applicant was adjudged guilty by a special 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.  After a thorough review of the applicant’s record and the issue he submitted, the analyst found no cause for clemency and at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment.  In view of the foregoing, the analyst recommend the Board no clemency.

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 6 August 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 4    No change 1   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  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 characterization of service was too harsh, and as a result it is now inequitable.  The Board found that the overall length and quality of the applicant’s service and his post service accomplishments, mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to under other than honorable conditions.  A change in the reason for discharge is not authorized under Federal Statute.

Case report reviewed and verified by: Eric S. Moore, Examiner									        
X.  Board Action Directed
No Change 
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 and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 

MARY E. SHAW				DATE: 17 August 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060016763

Applicant Name:  Mr.        
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