Applicant Name: ?????
Application Receipt Date: 2009/02/19 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: 030201
Discharge Received: Date: 050907 Chapter: 3, Sec IV AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: A Battery, PSB, Ft Sill, OK
Time Lost: AWOL x2 for a total of 487 days; AWOL for 102 days (040521-040830) apprehended; and AWOL for 385 days (030102-040122) apprehended.
Article 15s (Charges/Dates/Punishment): It is noted in the file that the applicant received two field grade Article 15's, one for illegal use of cocaine and another for AWOL (020806-020811). The actual forms are not part of the record.
Courts-Martial (Charges/Dates/Punishment): 040712, SPCM, without authority absent from her unit (030102-040122) discharged with a BCD, confined for 6 months and reduced to E1.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 25
Current ENL Date: 000424 Current ENL Term: 4 Years ?????
Current ENL Service: 4 Yrs, 00Mos, 06Days ?????
Total Service: 4 Yrs, 00Mos, 06Days Excess leave (373 days)
Previous Discharges: IADT 940422-941007/UNC
USAR 941006-990201/NA
USAR 990202-000423/HD
Highest Grade: E4 Performance Ratings Available: Yes No
MOS: 42L/Administrative Specialist GT: NIF EDU: HS Grad Overseas: None Combat: None
Decorations/Awards: NDSM, ASR
V. Post-Discharge Activity
City, State: San Diego, CA
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 21 May 2004, the applicant was found guilty by a special court-martial of AWOL (030102-040122). She was sentenced to be discharged with a Bad Conduct Discharge, confinement for 4 months, and reduction to E-1. On 12 July 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 12 July 2004, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 8 March 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. Furthermore, the analyst noted the applicant's issue and determined 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. Furthermore, the applicant was discharged under the provisions of Chapter 3, Section IV, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Court-Martial, Other", and the separation code is "JJD." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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: 10 November 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 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: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090002422
______________________________________________________________________________
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