Applicant Name:
Application Receipt Date: 2008/08/11 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See DD Form 293 and the attached documents 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: NIF Date: NIF
Discharge Received: Date: 080327 Chapter: 3 AR: 635-200
Reason: Court Martial RE: SPD: JJD Unit/Location: 978th MP Co, Ft Sill, OK
Time Lost: AWOL x 1, for 6 days (051123-051128); mode of return, NIF and Military Confinement for 67 days as a result of the SPCM (060227-060504). Total time lost 73 days.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 060227, SPCM (080131), on or between (050901-051130) conspired to commit wrongful possession, introduction and use of cocaine; on or about (051123-051128) absent himself from his unit; on or about (051128) go from his appointed place of duty; on or about (051123) disobeyed a lawful order from a NCO; on or about (051001-051130) wrongfully introduced and distributed some amount of cocaine onto an installation and also wrongfully used cocaine; on or about (051229) at or near Otero County Prison, New Mexico wrongfully used marijuana; reduction to E1, forfeiture of $785 pay per month for six months, confinement for six months and a Bad-Conduct Discharge.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 050324 Current ENL Term: 6 Years ?????
Current ENL Service: 2 Yrs, 09Mos, 20Days ?????
Total Service: 2 Yrs, 09Mos, 20Days ?????
Previous Discharges: None
Highest Grade: PV2 Performance Ratings Available: Yes No
MOS: 31B10 Military Police GT: 86 EDU: HS Grad Overseas: None Combat: None
Decorations/Awards: ASR
V. Post-Discharge Activity
City, State: Clarksville, TN
Post Service Accomplishments: None submitted
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 27 February 2006, the applicant was found guilty by a special court-martial of conspiring to commit wrongful possession, introduction and use of cocaine by driving to a meeting place to obtain the cocaine, absent himself from his unit, go from his appointed place of duty, disobeyed a lawful order from a NCO, wrongfully introduced and distributed some amount of cocaine onto an installation and also wrongfully used cocaine, at or near Otero County Prison, New Mexico wrongfully used marijuana. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 6 months, and reduction to E-1. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. The sentence was adjudged on 26 February 2006 as promulgated in Special Court-Martial Order Number 18.1, Headquarters US Army ADA Center and Fort Bliss dated 3 August 2006 as corrected by the US Army Court of Criminal Appeals dated 10 September 2007 has been finally affirmed. 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 record and the issue submitted by the applicant, 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, 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 and document 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: 22 April 2009 Location: Atlanta, GA
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: No Change
Other: NA
RE Code:
Grade Restoration: No Yes Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20080012818
______________________________________________________________________________
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