Applicant Name:  ?????

Application Receipt Date: 2008/11/14	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: 050318   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: C Co, 84th Eng Bn, Fort Wainwright, AK 

Time Lost: Confinement/Military Authorities for 37days (030312-030417), as a result of SPCM.

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

Courts-Martial (Charges/Dates/Punishment): 030312, SPCM, (The charges sheet or any other document indicating the reason for the SPCM was not found in the available records).  Punishment consisted of a bad conduct discharge, confinement for 45 days, and reduction to the grade of private E1.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 010111    Current ENL Term: 03 Years  ?????
Current ENL Service: 	04 Yrs, 01Mos, 01Days Includes 701 days of excess leave (030418-050318)
Total Service:  		05 Yrs, 11Mos, 23Days ?????
Previous Discharges: 	USAR-990219-990308/NA
                                       ADT-990309-990714/UNC
                                       USAR-990715-010110/HD
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 21W10/Carpentry and Masonry Specialist   GT: 97   EDU: HS Grad   Overseas: Alaska   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Chesapeake, VA
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The complete facts and circumstances leading to the applicant's discharge from the Army are not contained in the available records.  However, the record does show the applicant was found guilty by a special court-martial.  The charge sheet or any other supporting document indicating the reason for the SPCM was not found in the available records.  He was sentenced to a bad-conduct discharge, confinement for 45 days, and reduced to the grade of private E1.  On 12 March 2003, 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 5 June 2003, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 30 July 2004, the portion of the sentence having been affirmed pursuant to Article 71c having been complied with, the bad-conduct discharge 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 available 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, 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.  Further, 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 reason for discharge, the characterization of service, and the reentry eligibility (RE) code was both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 18 May 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: Yes 

Exhibits Submitted: The applicant submitted 21 pages of additional documents in support of his hearing.

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 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080019411
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