Applicant Name:  ?????

Application Receipt Date: 2009/04/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "I served over 180 days of active duty and my medical record show that I was clearly injured before being discharged".

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: 970128   Chapter: 3, Sec IV    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: B Battery, 1/8th FA, 25th Inf Div, Schofield Barracks, HI 

Time Lost: Military Confinement (950606-950913)

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): 950606, disrespectful in language toward a NCO (950307), willfully disobeyed a lawful order of a NCO (950208), made a false statement (950309), wrongfully use of marijuana (950304), willfully and unlawfully alter a public record (950305); reduced to E1, discharged with a BCD and confinement for a period of 4 months (SPCM).

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 930209    Current ENL Term: 4 Years  ?????
Current ENL Service: 	3 Yrs, 08Mos, 11Days ?????
Total Service:  		3 Yrs, 08Mos, 11Days Includes 504 days of excess leave
Previous Discharges: 	None
Highest Grade: E2		Performance Ratings Available: Yes    No 
MOS: 92A10 Material Storage and Handling   GT: 97   EDU: HS Grad   Overseas: Hawaii   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Albany, GA
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 6 June 1995, the applicant was found guilty by a special court-martial for being disrespectful in language toward a NCO, willfully disobeyed a lawful order of a NCO, making a false statement, wrongfully used marijuana, and willfully and unlawfully altering a public record.  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 4 months, and reduction to E-1.  On 6 June 1995, 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 26 January 1996, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       On 30 December 1996, 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 applicant’s military records, and the issue submitted with the application, the analyst found several mitigating factors that would merit an upgrade of the characterization of service to general, under honorable conditions.  
       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 court-martial and that the convening authority approved the sentence.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The Army Discharge Review Board is empowered to change the characterization of 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.  The analyst carefully reviewed the applicant’s military record and found that clemency was warranted.  
       Accordingly, the analyst recommends to the Board that the applicant’s characterization of service be upgraded to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 16 February 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 applicant’s record of service during the period of enlistment under review, and considering the analyst’s recommendation and rationale, the Board determined that clemency is warranted based on the applicant's length in service and the circumstances surrounding the discharge.  Accordingly, the Board voted to upgrade the applicant’s 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 3    No change 2
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 AR20090008286
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