Applicant Name: ?????
Application Receipt Date: 2008/12/10 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: Date: NIF
Discharge Received: Date: 060217 Chapter: 3 AR: 635-200
Reason: Court-Martial RE: SPD: JJD Unit/Location: HHC, 1/12th Inf, Ft Carson, CO
Time Lost: AWOL x 3 for 73 days (040623-040628); (040716-040817); (040818-040919); apprehended, Soldier confined at El Paso County Jail for 149 days (040818-050113) for pre-trial confinement.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 040920, SPCM, AWOL on 040623-040629, 040707-040708, 040716-040818; disrespectful language towards a NCO on 040518; wrongfully used marijuana on or about 040406-040506 and 040419-040519; wrongfully used cocaine on or about 040501-040506 and 040514-040519; uttered a check and wrongfully and dishonorably failed to maintain sufficient funds; wrongfully and unlawfully made and uttered checks in the amount of $1200 between 040528-040531; reduction to E1, forfeiture of $795 pay per month for six months, confined for six months and discharged with a BCD.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 17
Current ENL Date: 020808 Current ENL Term: 4 Years ?????
Current ENL Service: 3 Yrs, 00Mos, 06Days ?????
Total Service: 3 Yrs, 00Mos, 06Days Moral waiver for drug & alcohol disqualification
Previous Discharges: None
Highest Grade: E3 Performance Ratings Available: Yes No
MOS: 63M/BFV SYS MNT GT: 103 EDU: GED Overseas: None Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR
V. Post-Discharge Activity
City, State: Bronx, NY
Post Service Accomplishments: None submitted by the Applicant.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 20 September 2004, the applicant was found guilty by a special court-martial of AWOL x3, wrongfully using marijuana x2, wrongfully using cocaine x2, disrespectful language towards a NCO and uttering a check and wrongfully and dishonorably failing to maintain sufficient funds; wrongfully and unlawfully made and uttered checks in the amount of $1200. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for six months, and reduction to E-1. On 8 November 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 25 July 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 9 December 2005, 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 Applicant does not submit any matters of equity of propriety for consideration by the Board. Further, 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. After a thorough review of the applicants record and the issue submitted with the application, the analyst found no cause for clemency and therefore recommends to the Board to deny clemency.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 23 September 2009 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: None
Witnesses/Observers: None
Exhibits Submitted: None
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 AR20090000762
______________________________________________________________________________
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