Applicant Name:
Application Receipt Date: 2009/03/02 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See DD Form 293 and supporting 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: 070615 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: Co C, 307th Engineer BN, Ft Bragg, NC
Time Lost: Military confinement (001103-001126) 30 days
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 001103, SPCM, disobey a lawful command on or about 000824, sentenced to BCD, confinement for 30 days and reduction to E1.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 971104 Current ENL Term: 4 Years ?????
Current ENL Service: 9 Yrs, 06Mos, 18Days ?????
Total Service: 9 Yrs, 06Mos, 18Days Excess leave 2392 days (001127-070615)
Previous Discharges: None
Highest Grade: E4 Performance Ratings Available: Yes No
MOS: 12B/Combat Engineer GT: NIF EDU: HS Grad Overseas: None Combat: None
Decorations/Awards: AAM, NDSM, ASR
V. Post-Discharge Activity
City, State: Durham, NC
Post Service Accomplishments: See documents attached to the DD Form 293.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 3 November 2000, the applicant was found guilty by a special court-martial disobeying a lawful command. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 30 days, and reduction to E-1. On 3 November 2000, 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 22 December 2003 The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 27 November 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 applicants military records, the issue and documents 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. 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: 18 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. 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 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 AR20090006471
______________________________________________________________________________
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