Applicant Name: ?????
Application Receipt Date: 2009/04/17 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See enclosed DD Form 293 and attached document (1) 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: NA
Discharge Received: Date: 090130 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: HQ & HQ Company, 1st Battalion, 504th Parachute Infantry Regiment, 1st Brigade Combat Team, 82nd Airborne Division, Fort Bragg, NC
Time Lost: AWOL x 2, for 636 days from (050621-070130); (070511-070608); Surrendered to the military authorities at Fort Sill, OK; military confinement for 315 days, from (070720-080610); as a result of his sentence from a Special Court-Martial; total time lost 951 days.
Article 15s (Charges/Dates/Punishment): NIF
Courts-Martial (Charges/Dates/Punishment): The evidence of record shows that the applicant was sentenced to reduction to the grade of Private (E-1); confinement for 7 months, and a Bad Conduct Discharge, adjudged on 070720, as promulgated in Special Court-Martial Order Number 21, dated 070907. However, the Special Court-Martial document is not part of the available record and the analyst presummed government regularity in the discharge process.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 17
Current ENL Date: 040805 Current ENL Term: 3 Years 22 Weeks
Current ENL Service: 1 Yrs, 10 Mos, 28 Days Includes 372 days of excess leave from (080125-090130).
Total Service: 1 Yrs, 10 Mos, 28 Days ?????
Previous Discharges: None
Highest Grade: E-3 Performance Ratings Available: Yes No
MOS: 11B10 Infantryman GT: NIF EDU: GED Cert Overseas: None Combat: None
Decorations/Awards: AAM (2), NDSM, GWOTSM,
V. Post-Discharge Activity
City, State: ?????
Post Service Accomplishments: None submitted by the applicant.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The applicant's record is void of the complete facts and circumstances leading to his separation from the Army as a result of his Special Court-Martial and the analyst presummed government regularity in the discharge process. However, the evidence of record does show that on 21 August 2008, DA HQ, US Army Field Artillery Center, Fort Sill, OK; Special Court-Martial Order Number 100; indicated that on 7 September 2007, the Special Court-Martial adjudged on 20 July 2007,was affirmed, and that the portion of the sentence extending to confinement had been served, and pursuant to Article 71c having been complied with,ordered the Bad Conduct Discharge to be executed. On 26 January 2009, DA, US Army Installation Management Command, HQ, US Army Garrison, Fort Sill, OK; issued Orders 026-0217 discharging the applicant from the Regular Army with an effective date: 30 January 2009.
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 document he submitted, 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 noted the applicant's issue and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review. Further, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. After a thorough review of the applicants record and the issue and document 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 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: NA
Other: NA
RE Code:
Grade Restoration: No Yes Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090007964
______________________________________________________________________________
Page 1 of 3 pages
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