Applicant Name: ?????
Application Receipt Date: 2009/04/14 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: 070611 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: 25th BSB, 1st SBCT, Ft Lewis WA
Time Lost: Military confinement 150 days (051117-060415) as a result of SPCM conviction.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 051117, SPCM, failed to go at the time prescribed to his place of duty x5, (050609, 050601, 050525, 050529, 041129 & 041128), wrongfully use marijuana x3 (050601-050609), (050501-050531) & (050710-050810), disorderly conduct (050301), disrespectful language to a NCO (050920); reduction to E1, confinement for six months, and a bad conduct discharge.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 031009 Current ENL Term: 3 Years ?????
Current ENL Service: 3 Yrs, 03Mos, 04Days ?????
Total Service: 3 Yrs, 03Mos, 04Days Includes 422 days of excess leave (060416-070611)
Previous Discharges: None
Highest Grade: E2 Performance Ratings Available: Yes No
MOS: None GT: NIF EDU: HS Letter Overseas: None Combat: None
Decorations/Awards: None
V. Post-Discharge Activity
City, State: Spanaway, WA
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 17 November 2005, the applicant was found guilty by a special court-martial of failure to go at the time prescribed x5, wrongfully use marijuana x3, disorderly conduct and disrespectful language to a NCO x2. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for six months, and reduction to E-1. On 17 Novemebr 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 19 April 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 13 December 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.
Furthermore, 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. The analyst noted the applicant's issue; however, the record does not support the applicants contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.
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 recommends to the Board to deny clemency.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 27 January 2010 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 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 AR20090007731
______________________________________________________________________________
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