Applicant Name:  

Application Receipt Date: 2009/02/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and the 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: 971008   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: HHC, USAG, 43rd Support Group, Ft Carson, CO 

Time Lost: Military confinement (960326-960619) 86 days

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

Courts-Martial (Charges/Dates/Punishment): 960325, Special Court-Martial, conspiracy, larceny, forgery and presenting a false claim, all charges guilty; reduced to E1, forfeit $350 pay per month for 5 months, confined for 5 months (confinement in excess of four months is suspended until 15 July 1996, with provisions for automatic remission) and to be discharged from the service with a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 930803    Current ENL Term: 4 Years  ?????
Current ENL Service: 	03 Yrs, 11Mos, 10Days ?????
Total Service:  		03 Yrs, 11Mos, 10Days Excess leave (960708-971008) 458 days
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 71D10/Legal Specialist   GT: 108   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM, NDSM, ASR

V.  Post-Discharge Activity
City, State:  San Antonio, TX
Post Service Accomplishments: States that he has been employed since his discharge but does not provide any supporting documents.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 25 March 1996, the applicant was found guilty by a special court-martial of conspiracy to make false claim (941129), conspiracy to commit forgery (941202); larceny of military property and forgery (941202), frauds against the US by making and presenting a false claim (941130).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 5 months, forfeiture of $350 pay per month for a period of 5 months, and reduction to E-1.  On 12 June 1996, 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 14 May 1997, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 11 September 1997, 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, 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; however, the record does not support any allegations and the applicant provides no evidence that the command was arbitrary or capricious.  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, the analyst noted 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.  After a thorough review of the applicant’s 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: 5 October 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: None 

Exhibits Submitted: The applicant submitted a statement from his wife and an education advisor.  He also provided a copy of his home deed, resume, certifications, achievements and a family photo.  

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 determined that the characterization of service was too harsh, and clemency is warranted based on the overall length, quality of the applicant’s service and his post service accomplishments of achievements in the community and business.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute. 

        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 4    No change 1
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 AR20090005640
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