Applicant Name:
Application Receipt Date: 2008/10/23 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See DD Form 293 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: 061227 Chapter: 3 AR: 635-200
Reason: Court Martial, Other RE: SPD: JJD Unit/Location: HHB, 3rd BN, 43rd ADA, Fort Bliss, TX
Time Lost: AWOL x2 for 325 days (030923-031020), surrendered & (031028-040820), apprehended by civil authority
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 040812, SPCM, AWOL (031028-040428) & (030923-031021), wrongfully possess cocaine with the intent to distribute and use of cocaine (031018-031021); reduced to E1, confined for 106 days with credit for time served and discharged with a BCD.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 22
Current ENL Date: 020226 Current ENL Term: 3 Years ?????
Current ENL Service: 3 Yrs, 11Mos, 11Days ?????
Total Service: 3 Yrs, 11Mos, 11Days (Retained in the service 334 days for conveinence of the govt)
Previous Discharges: None
Highest Grade: E3 Performance Ratings Available: Yes No
MOS: 14T10/Patriot Op/Maint GT: 107 EDU: GED Overseas: None Combat: None
Decorations/Awards: NDSM, ASR
V. Post-Discharge Activity
City, State: Stone Mountain, GA
Post Service Accomplishments: None submitted
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 12 August 2004, the applicant was found guilty by a special court-martial of AWOL (031028-040428) & (030923-031021), wrongfully possessing cocaine with the intent to distribute and use of cocaine (031018-031021). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 106 days with credit for time served and reduction to E-1. On 12 August 2004, 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. On 11 April 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 12 August 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 applicants 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. The analyst noted the applicant's issue; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. After a thorough review of the applicants record and the issue 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: 7 August 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 applicants record of service during the period of enlistment under review and considering the analysts recommendation and rationale, the Board determined that the discharge was both proper and equitable and 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 AR20080016764
______________________________________________________________________________
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