Applicant Name:   

Application Receipt Date: 2008/09/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and 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: 	   Date: NIF
Discharge Received: 			   Date: 000224   Chapter: 3     AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Air Defense Center Military Police Company, Fort Bliss, TX 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 990518, SPCM, making a false official statement (990519), wrongfully used cocaine between (990224-990303), and again wrongfully used cocaine between (990312-990319); BCD.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  27
Current ENL Date: 940513    Current ENL Term: 5 Years  Retained past his ETS due to pending SPCM charges
Current ENL Service: 	05 Yrs, 09Mos, 11Days ?????
Total Service:  		05 Yrs, 09Mos, 11Days Includes 280 days of excess leave (990519-000224)
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 95B10/Military Police   GT: NIF   EDU: HS GRAD   Overseas: Panama, Saudi Arabia, Kuwait   Combat: None
Decorations/Awards: AAM x 3, AGCM

V.  Post-Discharge Activity
City, State:  Kissimmee, FL
Post Service Accomplishments: Attended junior college













VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The  record (SPCM Order number 5 dated 17 July 1999) shows that the applicant was found guilty by a special court-martial of making a false official statement (990519), wrongfully used cocaine between (990224-990303), and wrongfully used cocaine between (990312-990319).  He was sentenced to be discharged with a Bad Conduct Discharge.  On 10 October 2002, 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; this document was not found in the applicant's available file however the analyst presumed government regularity in the process.  On 24 February 2000, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 10 October 2002, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed.  The applicant's record does not contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), however, it does contain an Official Statement of Service from the Human Resources Command dated 14 August 2006, that indicates the applicant served in active duty from 13 May 1994 through 24 February 2000, discharged with a Bad Conduct Discharge, and a reentry code of RE-4.

       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 issue and documents submitted with the application, the analyst found several mitigating factors that would merit an upgrade of the characterization of service to general, under honorable conditions.  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 court-martial and that the convening authority approved the sentence.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The Army Discharge Review Board is empowered to change the characterization of 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.  The analyst carefully reviewed the applicant’s military record to include his length of service, quality of service and his post service accomplishments and found that clemency was warranted.  Accordingly, the analyst recommends to the Board that the applicant’s characterization of service be upgraded to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 26 January 2009         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: Yes

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, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh, and clemency is warranted based on the overall length and quality of the applicant’s service.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.  

        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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 AR20080014999
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