Applicant Name: ?????
Application Receipt Date: 2008/05/05 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See enclosed DD Form 293 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: 041105 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: Battery D, 1st Battalion, 4th Air Defense Artillery, APO AE 09185
Time Lost: Military Confinement for 96 days from (030410-030714), as a result of the special court-martial sentence.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 030410, Special Court-Martial-for wrongfully distributing some amount of methylenedioxy-methamphetamine (MDMA) on divers occasions between (020701-020901); and wrongfully using marijuana between (020823-020923). He was sentenced to confinement for four months, and to be discharged with a Bad-Conduct Discharge.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 22
Current ENL Date: 000512 Current ENL Term: 4 Years ?????
Current ENL Service: 4 Yrs, 2 Mos, 18 Days Includes 449 days of excess leave from (030815-041105)
Total Service: 4 Yrs, 2 Mos, 18 Days ?????
Previous Discharges: None
Highest Grade: E-1 Performance Ratings Available: Yes No
MOS: NIF GT: NIF EDU: GED Certif Overseas: Germany Combat: None
Decorations/Awards: NIF
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 10 April 2003, the applicant was found guilty by a special court-martial of for wrongfully distributing some amount of methylenedioxy-methamphetamine (MDMA) on divers occasions between (020701-020901); and wrongfully using marijuana between (020823-020923). He was sentenced to confinement for four months, and to be discharged with a Bad-Conduct Discharge. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. On 14 April 2004, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 10 September 2004, 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 and the issue 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 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. Furthermore, the analyst noted the applicant's issue; however, the applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a soldier. The applicant, as a soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting a fully honorable or general discharge. Further, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. After a thorough review of the applicants record and the issue submitted with the application, 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: 11 February 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 AR20080007224
______________________________________________________________________________
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