Applicant Name: ?????
Application Receipt Date: 2009/04/22 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See the DD Form 293 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: 050826 Chapter: 3, SEC IV AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: C Co Womack AMC , Ft Bragg, NC
Time Lost: AWOL x1 (021004-031202) 424 days, apprehended; Pre-trial confinement (040311-040721).
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 040722; AWOL (021004-031203), wrongfully possessed a controlled substance marijuana (020808), willfully disobeyed the 1SG (040227), willfully damaged military property (040227), wrongfully used a controlled substance marijuana (040301-040331); confined for 5 months and discharged with a BCD (SPCM).
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 000306 Current ENL Term: 6 Years ?????
Current ENL Service: 3 Yrs, 11Mos, 03Days ?????
Total Service: 3 Yrs, 11Mos, 03Days Includes excess leave (040818-050826),374 days.
Previous Discharges: None
Highest Grade: E1 Performance Ratings Available: Yes No
MOS: 91W10 Health Care Specialist GT: NIF EDU: HS Grad Overseas: None Combat: None
Decorations/Awards: NDSM, ASR
V. Post-Discharge Activity
City, State: Max Meadows, VA
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 22 July 2004, the applicant was found guilty by a special court-martial of AWOL (021004-031203), wrongfully possessed a controlled substance marijuana (020808), willfully disobeyed the 1SG (040227), willfully damaged military property (040227), wrongfully used a controlled substance marijuana (040301-040331). He was sentenced to be discharged with a Bad Conduct Discharge and confinement for 5 months. On 22 July 2004, 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 November 2004, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 23 June 2005, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed.
The record contains a GOMOR dated 23 April 2002 driving while impaired.
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 noted the applicants 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, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
After a thorough review of the applicants record and the issue 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 AR20090008255
______________________________________________________________________________
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