Applicant Name:  ?????

Application Receipt Date: 2008/10/01	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: 	NIF   Date: NIF
Discharge Received: 			   Date: 080208   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JD   Unit/Location: A Trp, 3-1 CAV, Fort Benning, GA 

Time Lost: Confinement/Military Authorities for 23 days (070119-070211).

Article 15s (Charges/Dates/Punishment): 060922, wrongful use of cocaine; reduction to E-1, forfeiture of $500 x 2, 45 days extra duty and 45 days restriction (FG).  However, this document is not part of the available record, see Staff Judge Advocate's Memorandum dated (070226). 

Courts-Martial (Charges/Dates/Punishment): 070119, SPCM, wrongful use of cocaine x 2, on divers occasions between (060101-060901) and (061101-061127); confinement for 30 days and discharged with a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 040331    Current ENL Term: 4 Years  the applicant was separated from service on incomplete records, a DD Form 215 will be issued to provide missing information.
Current ENL Service: 	03 Yrs, 09Mos, 16Days ?????
Total Service:  		06 Yrs, 00Mos, 01Days includes 362 days of excess leave (070212-080208)
Previous Discharges: 	RA-020115-040330/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 122   EDU: GED Cert   Overseas: Southwest Asia   Combat: Iraq (Dates NIF)
Decorations/Awards: ARCOM, AAM, NDSM, GWOTEM, ICM, GWOTSM, ASR, OSR, CIB

V.  Post-Discharge Activity
City, State:  Ogden, UT
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 19 January 2007, the applicant was found guilty by a special court-martial of wrongful use of cocaine x 2, on divers occasions between (060101-060901) and (061101-061127).  He was confined for 30 days and discharged with a bad conduct discharge.  On 16 March 2007, the sentence was approved.  Further, the record of trial being forwarded to The Judge Advocate General of The Army for review by the Court of Military Review, and also the United States Army Court of Military Review affirming the approved findings of guilty and the sentence; however, these documents are not part of the available record and the analyst presumed Government regularity in the discharge process.  On 21 November 2007, 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 during the period of enlistment under review, the issues and document he submitted, the analyst found no mitigating factors that would warrant clemency.  The evidence of record clearly shows that the applicant was adjudged guilty by 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 Board is empowered to change 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.  After a thorough review of the applicant’s record and the issues he submitted, the analyst found no cause for clemency and recommends to the Board no clemency.  Furthermore, the analyst noted the applicant's issue; however, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Finally, 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.   In view of the foregoing, the analyst determined that the characterization of service,  reason for discharge to include the reentry elgibility (RE) code was both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 21 July 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 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: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080015283
______________________________________________________________________________

Page 1 of 2 pages