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 attached 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: BCD
Discharge Received: Date: 950504 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: HHC, Div Spt Cmd, 5th IN Div, Fort Polk, LA
Time Lost: Confinement/Military Authorities for 78 days (920618-920903).
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 920618, SPCM, steal a Kenwood Stereo system, of a value of about $1,850 (920216); reduction to E-1, forfeiture of $500 pay x 4 months, confinement for four (4) months, and a bad-conduct discharge.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 22
Current ENL Date: 900914 Current ENL Term: 2 Years 20 Weeks
Current ENL Service: 04 Yrs, 05Mos, 04Days ?????
Total Service: 04 Yrs, 05Mos, 04Days includes 959 days of excess leave (920918-950504)
Previous Discharges: None
Highest Grade: E-3 Performance Ratings Available: Yes No
MOS: 94B10 Food Service Spec GT: 94 EDU: HS Grad Overseas: Southwest Asia Combat: Saudi Arabia (910210-910417)
Decorations/Awards: SWASM-W/1 BSS, ASR
V. Post-Discharge Activity
City, State: Houston, TX
Post Service Accomplishments: None Listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 18 June 1992, the applicant was found guilty by a special court-martial of stealing a Kenwood Stereo system, of a value of about $1,850 (920216). He was sentenced to reduction to E-1, forfeiture of $500 pay x 4 months, confinement for four (4) months, and a bad conduct discharge. That part of the sentence adjudging confinement in excess of 90 days was suspended for one (1) year with provisions for automatic remission. On 10 September 1992, the sentence was approved. Further, the record of trial forwarded to The Judge Advocate General of The Army for review by the Court of Military Review, and the United States Army Court of Military Review affirming the approved findings of guilty and the sentence are not part of the available record and the analyst presumed government regularity in the judicial process. On 2 June 1993, 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 during the period of enlistment under review, the issues and documents that he submitted, the analyst determined that clemency is warranted. The analyst found several mitigating factors that would merit an upgrade of the characterization of service to general, under honorable conditions. The analyst found that the length of the applicant's service; to include his combat service, mitigated the discrediting entry in his service record. Accordingly, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to general, under honorable conditions. However; a change to the narrative reason for discharge is not authorized under Federal Statute.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 29 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 determined that clemency was warranted. Accordingly, the Board voted to grant relief in the form of an 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 4 No change 1
Reason - Change 0 No change 0
(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 AR20090007801
______________________________________________________________________________
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