Applicant Name:  ?????

Application Receipt Date: 2008/12/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents submitted bythe 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: 060707   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: C Btry, 3-27 FA Regt, Fort Bragg, NC 

Time Lost: AWOL for 15 days (050322-050406), apprehended; Pre-Trial Confinement for 48 days (050408-050525), Confinement/Military Authorities for 149 days (050526-051021).  Total time lost 212 days.  

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

Courts-Martial (Charges/Dates/Punishment): 050526, SPCM, committed carnal knowledge (041110), wrongful use of marijuana x 2 (050204-050307) and (050308-050408), willfully disobey an order from a CPT (050407), and AWOL (050322-050407); to be discharged from the service with a bad conduct discharge, and confinement for nine (9) months.  Only so much of the sentence as provides for a bad conduct discharge and confinement for eight (8) months is approved, and except for the part of the sentence extending to a bad conduct discharge, will be executed.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 031028    Current ENL Term: 4 Years  ?????
Current ENL Service: 	02 Yrs, 01Mos, 11Days ?????
Total Service:  		02 Yrs, 01Mos, 11Days Includes 259 days of excess leave (051022-060707)
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 13M10 MLRS/HIMARS Crew    GT: 98   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Plano, TX
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 26 May 2005, the applicant was found guilty by a special court-martial of committing carnal knowledge (041110), wrongful use of marijuana x 2 (050204-050307) and (050308-050408), willfully disobey an order from a CPT (050407), and AWOL (050322-050407).  He was sentenced to confinement for confinement for nine (9) months, and a bad conduct discharge.  However, only so much of the sentence as provides for a bad conduct discharge and confinement for eight (8) months was approved, and the applicant was credited with 50 days confinement credit towards the sentence to confinement.  On 10 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 21 October 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 6 April 2006, 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 applicant’s 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 and determined that the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Further, the analyst notes the applicant’s accomplishment since separation from active duty.  The applicant is to be commended for his effort.  However, this accomplishment does not provide the Board a basis upon which to grant relief.  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 reason for discharge and the characterization of service  were both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 30 September 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 AR20090000828
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