Applicant Name:  ?????

Application Receipt Date: 2009/02/04	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached document 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: 070803   Chapter: 3      AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: B Trp, 1-2 Cav Regt, Fort Lewis, WA 

Time Lost: AWOL x 2 for 95 days (050416-050707) and (050718-050729), surrendered.  Confinement /Military Authorities for 91 days.  Total time lost 186 days. 

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

Courts-Martial (Charges/Dates/Punishment): 051115, SPCM, AWOL x 2 (050416-050707) and (050718-050729), behave with disrespect towards a CPT (050707), disrespectful  in language towards a CPL (050729), willfully and wrongfully damage a car by throwing rocks at it, the amount of damage being in the sum of $1,291.00, the property of K.R. (050729), wrongful use of marijuana (050629-050729), and drunk and disorderly (050629-050729); reduction to E-1, confinement for eight (8) months, and a bad conduct discharge.  The applicant was credited with 109 days of confinement against the sentence to confinement. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 041013    Current ENL Term: 3 Years  18 Weeks/with a medical waiver
Current ENL Service: 	02 Yrs, 03Mos, 18Days ?????
Total Service:  		02 Yrs, 03Mos, 18Days Includes 536 days of excess leave (060214-070803)
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: NIF   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Clarksville, TN
Post Service Accomplishments: The applicant states he attended the Job Corps; and recently graduated receiving a certificate in business clerical and is pursuing a degree in criminal justice.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 15 November 2005, the applicant was found guilty by a special court-martial of AWOL x 2 (050416-050707) and (050718-050729), behave with disrespect towards a CPT (050707), disrespectful  in language towards a CPL (050729), willfully and wrongfully damage a car by throwing rocks at it, the amount of damage being in the sum of $1,291.00, the property of K.R. (050729), wrongful use of marijuana (050629-050729), and drunk and disorderly (050629-050729).  He was sentenced to reduction to E-1, confinement for eight (8) months, and a bad conduct discharge.  The applicant was credited with 109 days confinement credit against the sentence to confinement.  On  13 July 2006, 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.  The United States Army Court of Military Review documentation affirming the approved findings of guilty and the sentence is not part of the available record and the analyst presumed Government regularity in the process.  On 19 April 2007, 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 had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  Further, the analyst found no evidence of arbitrary or capricious actions by the command.  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.  Additionally, the analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in the document with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.   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: 6 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 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 AR20090005761
______________________________________________________________________________

Page 1 of 3 pages