Applicant Name:  ?????

Application Receipt Date: 2008/06/03	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he is requesting an upgrade so that he can reenter the Army as an infantryman. He has made some wrong choices in his life and at the age of 39, would like a second chance to prove himself. 

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: 990818   Chapter: 3, Section IV       AR: 635-200
Reason: Court-Martial	   RE:     SPD: JJD   Unit/Location: Company C, 1st Battalion, 508th Infantry (Airborne Battalion Combat Team), APO, AE 09630 

Time Lost: Military Confinement for 74 days from (971120-980201); as part of his punishment from a Special Court-Martial sentencing.

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): DA, HQ, US Army Armor Center, Fort Knox, KY 40121-5000; Special Court-Martial Order Number 44, dated 5 March 1999; indicates that the applicant in a special court-martial case, adjudged on (971120); was sentenced to reduction to Private (E-1), forfeiture of $594.00 pay per month for four months, confinement for four months, and a bad-conduct discharge; however, the specific charge(s) leading to the applicant's special court-martial and subsequent discharge from the Army are not part of the available record.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 961016    Current ENL Term: 3 Years  17 Weeks
Current ENL Service: 	2 Yrs, 7 Mos, 19 Days Includes 522 days of excess leave (980315-990818)
Total Service:  		2 Yrs, 7 Mos, 19 Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 103   EDU: GED Certif   Overseas: Germany   Combat: None
Decorations/Awards: 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 specific facts and circumstances leading to the applicant’s discharge from the Army are not contained in the available records.  However, the evidence of record shows that on 5 March 1999, DA, HQ, US Army Armor Center, Fort Knox, KY 40121-5000, Special Court-Martial, Order number 44, indicated in the special court-martial case of the applicant that the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence to a bad-conduct discharge was ordered to be executed.  Further, the record contains a properly constituted DD form 214 (Certificate of Release or Discharge from Active Duty), which the applicant was unavailable for signature.  His DD Form 214 indicates that he was discharged under the provisions of Chapter 3, AR 635-200, by reason of a court-martial, with a bad conduct discharge.  Furthermore, the DD Form 214 shows a Separation Code of JJD (i.e., court-martial.).  On 11 August 1999, DA, HQ, US Army Armor Center, Fort Knox, KY 40121-5000, issued Orders 223-0153 discharging the applicant from the Regular Army with an effective date of : 18 August 1999.  

       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 available military records, the analyst found no mitigating factors that would warrant clemency.  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, 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.  Additionally, the analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army.  If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the applicant to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration.  After a thorough review of the applicant’s 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: 6 March 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 applicant’s record of service during the period of enlistment under review and considering the analyst’s 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 0
(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 AR20080008818
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