Applicant Name: ?????
Application Receipt Date: 2008/03/20 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See enclosed DD Form 293 and attached documents (1) submitted by the applicant.
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: 060303 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: HQ & HQ Company (Rear) (Provisional), 2nd Battalion, 87th Infantry Regiment, Fort Drum, NY 13602-5000
Time Lost: AWOL x 1 for 218 days (030818-040310), apprehended. Also, the applicant was credited for 29 days of military confinement, due to his court-martial.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 040407, Special Court-Martial-for Charge I: desertion from (030818-040310), in that he failed to deploy to Afghanistan to avoid hazardous duty, and Charge II: through design miss the movement of his unit, which he was required in the course of duty to move; between on or about (030818-030831). He was sentenced to reduction to Private (E-1), forfeiture of $795.00 pay per month for 9 months, confinement for 9 months and to be discharged from the Army with a Bad Conduct Discharge.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 21
Current ENL Date: 001027 Current ENL Term: 4 Years The date on the DD Form 214, item 12a; date entered active duty this period is incorrect, should be: (001027). See DD Form 4/3 Enlistment Contract.
Current ENL Service: 3 Yrs, 5 Mos, 15 Days Includes 505 days of excess leave from (041015-060303).
Total Service: 3 Yrs, 5 Mos, 15 Days ?????
Previous Discharges: None
Highest Grade: E-4 Performance Ratings Available: Yes No
MOS: 11B10 Infantryman GT: 95 EDU: HS Grad Overseas: Korea (010416-020415) Combat: None
Decorations/Awards: AAM, ASR, OSR
V. Post-Discharge Activity
City, State: ?????
Post Service Accomplishments: See enclosed DD Form 293 with attachments.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 7 April 2004, the applicant was found guilty by a special court-martial for; Charge I: desertion from (030818-040310), in that he failed to deploy to Afghanistan to avoid hazardous duty, and Charge II: through design miss the movement of his unit, which he was required in the course of duty to move; between on or about (030818-030831). He was sentenced to reduction to Private (E-1), forfeiture of $795.00 pay per month for 9 months, confinement for 9 months and to be discharged from the Army with a Bad Conduct Discharge. On 24 July 2004, 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 affirming the approved findings of guilty and the sentence are not part of the available record and the analyst presumed Government regularity in the discharge process. On 30 September 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.
c. Response to Issues, Recommendation and Rationale:
After a careful review of all the applicants military records, documents and the issue, 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 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. Furthermore, the analyst noted the applicant's issue outlining his successful accomplishments since separation from active duty. The applicant is to be commended for his efforts. However, these accomplishments do not provide the Board a basis upon which to grant relief. After a thorough review of the applicants record, the analyst found no cause for clemency and therefore recommend to the Board to deny clemency.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 7 January 2009 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: NA
Witnesses/Observers: NA
Exhibits Submitted: NA
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review and considering the analysts recommendation and rationale, the Board found no cause for clemency and therefore voted to deny relief.
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 0 No change 5
Reason - Change 0 No change 5
(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: NA
Other: NA
RE Code:
Grade Restoration: No Yes Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20080004315
______________________________________________________________________________
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