Applicant Name: ?????
Application Receipt Date: 2009/02/24 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: Date: NIF
Discharge Received: Date: 050204 Chapter: 3 AR: 635-200
Reason: Court Martial RE: SPD: NIF Unit/Location: B Co, 864th EN BN, 555th EN BDE, Fort Lewis, Washington
Time Lost: AWOL x3 for 36 days (020125-020126),(020204-020211) and (020214-200321), mode of return NIF.
Article 15s (Charges/Dates/Punishment): NIF - applicant states he received FG Article 15 in his DD Form 293.
Courts-Martial (Charges/Dates/Punishment): 020509 SPCM, AWOL from unit (020214- 200321), failure to go to his appointed place of duty x3 wit: 0630 hours accountability formation (020129-020131) and wrongfully use marijuana, (011006-011106); Confinement for 45 days and Bad Conduct Discharge (BCD).
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 27
Current ENL Date: 991101 Current ENL Term: 3 Years ?????
Current ENL Service: 3 Yrs, 0Mos, 0Days ?????
Total Service: 5 Yrs, 2Mos, 2Days Includes 875 days of excess leave (020909-050204)
Previous Discharges: IADT 980504-981026/HD Concurrent Service
ARNG 980122-991031/HD
Highest Grade: E4 Performance Ratings Available: Yes No
MOS: 44B10 Metal Worker GT: NIF EDU: HS Grad Overseas: NIF Combat: NIF
Decorations/Awards: ASR
V. Post-Discharge Activity
City, State: ?????
Post Service Accomplishments: None provided by the applicant.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 9 May 2002, the applicant was found guilty by a special court-martial of wrongfully using marijuana and being AWOL from his unit on 14 February 2002 until 21 March 2002. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 45 days, and reduction to E-1. On 9 September 2002, 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 4 February 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and 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:
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. If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Boards consideration. After a thorough review of the applicants available documents contained in the record and the issue 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: 4 December 2009 Location: Washington, D.C.
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 found no cause for clemency and therefore voted to deny relief.
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 1 No change 4
Reason - Change 0 No change 5
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: N/A
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090006478
______________________________________________________________________________
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