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 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: 060324 Chapter: 3 AR: 635-200
Reason: Court-Martial RE: SPD: JJD Unit/Location: A Battery, 3/319 FAR, 82nd Airborne Div, Ft Bragg, NC
Time Lost: Military Confinement (050422-050729)
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 050422, Special CM, wrongfully used cocaine on two occasions (050301 and on or about 050310), disorderly conduct between on or about (050304-050305); unlawfully entered the dwelling of a SPC and Mrs on or about (050305); sentenced with a BCD and confinement for four months.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 29
Current ENL Date: 030624 Current ENL Term: 3 Years ?????
Current ENL Service: 2 Yrs, 05Mos, 23Days ?????
Total Service: 5 Yrs, 11Mos, 21Days Excess leave (238 days)
Previous Discharges: ARNG 980209-030623/HD
RA 980323-980721/UNC
IADT 000127/000514/UNC
Highest Grade: E5 Performance Ratings Available: Yes No
MOS: 13B/Cannon Crewmember GT: 95 EDU: Associate's Degree Overseas: Hawaii Combat: None
Decorations/Awards: ARCAM, NDSM, ASR
V. Post-Discharge Activity
City, State: Kapolei, HI
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 22 April 2005, the applicant was found guilty by a special court-martial of wrongful use of cocaine on two occasions, disorderly counduct, and unlawfully entered the dwelling of a SPC and a civilian female, to be discharged with a Bad Conduct Discharge and confinement for four months. On 29 July 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 26 September 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 5 January 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 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 analyst noted the applicant's issue; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 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: 30 October 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 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 AR20090005655
______________________________________________________________________________
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