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: 070221   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: B Co, 1-24 IN Regt, Fort Lewis, WA 

Time Lost: AWOL for 733 days (010104-030106), apprehended. 

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

Courts-Martial (Charges/Dates/Punishment): 030514, SPCM, AWOL (010104-030106), and remained away in desertion until apprehended; reduction to E-1, and discharged with a bad-conduct discharge.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 980903    Current ENL Term: 6 Years  ?????
Current ENL Service: 	09 Yrs, 05Mos, 27Days ?????
Total Service:  		09 Yrs, 10Mos, 28Days includes 1,380 days of excess leave (030514-070221) 
Previous Discharges: 	USAR-950321-950821/NA
                                       RA-950822-980902/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 118   EDU: HS Grad   Overseas: Korea/Germany   Combat: None
Decorations/Awards: AAM-3, AGCM, NDSM, NCOPDR, ASR, OSR, EIB

V.  Post-Discharge Activity
City, State:  Amesbury, MA
Post Service Accomplishments: The applicant claims he earned a degree.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 14 May 2003, the applicant was found guilty by a special court-martial of AWOL (010104-030106).  The applicant was sentenced to be  reduced to E-1, and discharged with a bad-conduct discharge.  The documentation approving of the sentence and 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 process.  On 19 November 2004, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be  executed.  The record does a contain a properly constituted DD Form 214, (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  The DD Form 214 indicates that he was discharged under the provisions of Chapter 3, by reason of a court martial, other, with a bad conduct discharge.  Furthermore, the DD Form 214 shows a Separation Code of JJD (i.e., court martial, other), with a reentry eligibility (RE) code of "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 military records during the period of enlistment under review and the issues 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 and the analyst considered the applicant’s quality of service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of service.  Further, the analyst determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  Additionally, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   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: 23 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 AR20080015949
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