Applicant Name:

Application Receipt Date: 070720	

Prior Review    Prior Review Date: None

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

Issues: See DD Form 149 which was submitted by the applicant in lieu of a DD Form 293 and attached 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: 040114
Discharge Received:     Date: 041022   
Chapter: 3    AR: 635-200
Reason: Court-Martial, Desertion
RE:     SPD: JJC
Unit/Location: 63d Engr Co, 13th CBT SPT BN, Fort Benning, GA 

Time Lost: AWOL for 274 days (030106-031006) and confinement military authorities 178 days (040107-040702).  Total time lost 452 days.

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

Court-Martials (Charges/Dates/Punishment): 040114, SPCM, AWOL and missing movement (030106-031006).  BCD, reduction to E-1, forfeiture of $795.00 pay per month for 9 months, and confinement for 9 months.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  1982/04  
HOR City, State: Ozark, AL
Current ENL Date: 011030    Current ENL Term: 03 Years  ?????
Current ENL Service: 01 Yrs, 08Mos, 21Days Includes 112 days of excess leave (040703-041022).
Total Service:  03 Yrs, 03Mos, 00Days ?????
Previous Discharges: ARNG-000420-001002/NA
                                      ADT-001003-010302/HD
                                      ARNG-010303-011029/NA
Highest Grade: E3
Performance Ratings Available: Yes    No 
MOS: 21J10/General Construction Equipment Operator   GT: 90   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 14 January 2004, the applicant was found guilty by a Special Court-Martial of AWOL and missing movement (030106- 031006).  The applicant was sentenced to be discharged with a Bad Conduct Discharge, confinement for 9 months, reduction to E-1, and forfeiture or $795.00 pay per month for 9 months.  On 26 March 2004, only so much of the sentence as provides for reduction to private E-1, forfeiture of $795.00 pay per month for 9 months, confinement for 7 months, and discharge from the service with a bad conduct discharge was approved, and except for the part of the sentence extending to a bad-conduct discharge was ordered to be executed.  The applicant was to be credited with 9 days of confinement credit against his sentence to confinement.  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.  The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  On 10 September 2004, the portion of the sentence pertaining to confinement having been served and the sentence having been affirmed 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 during the period of enlistment under review, 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 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.  After a thorough review of the applicant’s record and the issue he submitted, the analyst found no cause for clemency and therefore recommend to the Board no clemency.  Furthermore, 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.  

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 25 July 2008              
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 0    No change 5   - 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 discharge was both proper and equitable, and voted to deny relief.























								        
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: 


CHRISTINE U. MARTINSON			DATE: 31 July 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070010229
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