Applicant Name:
Application Receipt Date: 2008/10/28 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See DA 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: 070214 Chapter: 3 AR: 635-200
Reason: Court-Martial RE: SPD: JJD Unit/Location: F Co, 704th FSB, 4ID, Ft Hood, TX
Time Lost: AWOL for 120 days (050304-050702), mode of return: unknown
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 050819, Special Court Martial, failed to go at the prescribed place of duty (050113), without authority go from his appointed place of duty (050110), absent himself from his unit (050201-050301), flee apprehension by a Department of the Army policeman (050301), wrongfully possess some amount of marijuana (041226), wrongfully use cocaine (050101-050107), wrongfully use marijuana (041208-050107), broke said restriction (050301); reduced to E1, confinement to 5 months and BCD.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 22
Current ENL Date: 030928 Current ENL Term: 3 Years ?????
Current ENL Service: 3 Yrs, 00Mos, 17Days ?????
Total Service: 06 Yrs, 01Mos, 15Days Excess leave 548 days (050816-070214)
Previous Discharges: RA 000831-030927/HD
Highest Grade: E5 Performance Ratings Available: Yes No
MOS: 63M/BFV SYS MNT GT: 91 EDU: HS Grad Overseas: None Combat: Iraq (Date NIF)
Decorations/Awards: ARCOM, NDSM, GWOTSM, ASR
V. Post-Discharge Activity
City, State: Killeen, TX
Post Service Accomplishments: None submitted
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 5 May 2005, the applicant was found guilty by a special court-martial of failing to go at the prescribed place of duty (050113), without authority go from his appointed place of duty (050110), absent himself from his unit from (050201-050301), fled apprehension by a Department of the Army policeman (050301), wrongfully possess some amount of marijuana (041226), wrongfully use cocaine (050101-050107), wrongfully use marijuana (041208-050107), broke said restriction (050301). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 5 months, and reduction to E-1. On 19 August 2005, 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 30 March 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 7 September 06, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed.
The Applicant was given a GOMOR, on 7 January 2005 for driving while intoxicated (041216). The GOMOR was filed in the Applicant's OMPF.
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. After a thorough review of the applicants record and the issue and documents 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: 12 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 AR20080017243
______________________________________________________________________________
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