Applicant Name: ?????
Application Receipt Date: 2009/03/03 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The Applicant provided no issues of equity or propriety to be considered by the board. See enclosed DD Form 293.
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: NIF
Discharge Received: Date: 050610 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: HHC, Aviation Bde, 3d Inf Div, Hunter Army Airfield, GA
Time Lost: Military Confinement (040316-040504) 49 days.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 041001, wrongfully used marijuana, a schedule I controlled substance, between 21 November 2003 and 22 December 2003; wrongfully possessed marijuana, a schedule I controlled substance, between 21 November 2003 and 22 December 2003; wrongfully used marijuana, a schedule I controlled substance, between 5 December 2003 and 6 January 2004: forfeiture $795 of pay per month for 3 months, confinement for 3 months and discharge from the service with a Bad-Conduct Discharge.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 020305 Current ENL Term: 4 Years ?????
Current ENL Service: 3 Yrs, 1Mos, 16Days ?????
Total Service: 3 Yrs, 1Mos, 16Days Excess leave (040505-050610) 402 days
Previous Discharges: None
Highest Grade: E3 Performance Ratings Available: Yes No
MOS: 93P10 Aviation Ops Spc GT: NIF EDU: HS Grad Overseas: None Combat: None
Decorations/Awards: ARCOM, NDSM, ASR
V. Post-Discharge Activity
City, State: Richmond, VA
Post Service Accomplishments: Applicant states he has a CDL Class A license, and has been a law abiding citizen since his release; no documentation provided.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 16 March 2004, the applicant was found guilty by a special court-martial of wrongfully using marijuana, a schedule I controlled substance, between 21 November 2003 and 22 December 2003; wrongfully possessing marijuana, a schedule I controlled substance, between 21 November 2003 and 22 December 2003; wrongfully using marijuana, a schedule I controlled substance, between 5 December 2003 and 6 January 2004. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 3 months, and ,forfeiture $795 of pay per month for 3 months, sentence reduced to confinement for 2 months and Bad-Conduct Discharge. On 1 October 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 7 April 2005, the sentence, having been affirmed pursuant to Article 71c having been complied with, 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 the applicants military records, documents and the issue submitted with the application, the analyst found several mitigating factors that would merit an upgrade of the characterization of service to general, under honorable conditions. 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 court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Army Discharge Review Board is empowered to change the characterization of 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 carefully reviewed the applicants military record and post service accomplishments and found that clemency was warranted, based on the overall length and quality of the applicant's service. Accordingly, the analyst recommends to the Board that the applicants characterization of service be upgraded to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 2 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 determined that clemency was warranted, based on the overall length and quality of the applicant's service. Accordingly, the Board voted to upgrade the applicants 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 5 No change 0
Reason - Change NA No change NA
(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: NA
Other: NA
RE Code:
Grade Restoration: No Yes Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090006413
______________________________________________________________________________
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