Applicant Name:  

Application Receipt Date: 2008/09/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The Applicant states that in addition to an upgrade of his discharge to a General Discharge, he would also like to have his rank changed in his DD Form 214.  He was reduced to E-4 not to E-1.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: Not In File
Discharge Received: 			   Date: 050311   Chapter: 3, Section IV    AR: 635-200
Reason: Court Martial, Other	   RE:     SPD: JJD   Unit/Location: C Co, 577th EN Bn, Fort Leonard Wood, MO 

Time Lost: 119 days, military confinement (040218-040616)

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

Courts-Martial (Charges/Dates/Punishment): 040218, SPCM, AWOL x 5 (031028-031029, 031030-031031, 031104-031105, 031105-031106, and 031016), wrongful use of cocaine (030710-030724), wrongful use of 
d-methamphetamines x 2 (031001-031016 and 031201-031218), and wrongful use of marijuana x 2 (031001-031016, 031201-031218), reduction to E-4, forfeiture of $700 x 5, confinement for 155 days, Bad Conduct Discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  41
Current ENL Date: 030225    Current ENL Term: ?? Years  ?????
Current ENL Service: 	01 Yrs, 08Mos, 17Days ?????
Total Service:  		15 Yrs, 00Mos, 04Days ?????
Previous Discharges: 	RA 831011-870902/HD
                                       RA 870903-910506/HD
                                       RA 910507-930510/HD
                                       ARNG 930511-940510/NIF
                                       USAR 000920-030224/NA  
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 12B40/Combat Engineer   GT: 122   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ARCOM, AGCM-3, NDSM-2, NCOPDR, ASR, OSR-2, AFRM, EIB

V.  Post-Discharge Activity
City, State:  Indianapolis, IN
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 18 February 2004, the applicant was found guilty by a special court-martial of wrongful use of cocaine (030710-030724), AWOL x 5 (031016, 031028-031029, 031030-031031, 031104-031105, 031105-031106), wrongful use of d-amphetamines x 2 (031001-031016, 031201-031218), and wrongful use of marijuana x 2 (031001-031016, 031201-031218).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 155 days, forfeiture of $700 for five months, and reduction to E-4.  The sentence was approved on 26 March 2004, except for the part of the sentence extending to the BCD.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 3 December 2004, SPCM Orders Number 4, DA, HQ,  USA Fort Leonard Wood, MO, indicate that The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 26 May 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 applicant’s military records, 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 Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank.  The Board may only change the characterization or reason for discharge.  If an applicant believes there is an error or injustice in his discharge, he then may make an application to the Army Board for Correction of Military Records, utilizing a DD Form 149, which is enclosed.  In view of the foregoing and after a thorough review of the applicant’s record and the issue submitted with his application, the analyst found no cause for clemency and therefore recommends to the Board to deny clemency.  

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 5 June 2009         Location: Washington, D.C.

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 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 AR20080013681
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