Applicant Name:
Application Receipt Date: 2009/04/25 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: N/A
See Attachments: Legal Medical Minority Opinion Exhibits
III. Discharge Under Review
Unit CDR Recommended Discharge: Date: N/A
Discharge Received: Date: 001212 Chapter: 3 AR: 635-200
Reason: Court Martial, Other RE: SPD: JJD Unit/Location: HHC, Special Troops Bn, Fort Bragg, NC
Time Lost: 46 days, confinement as result of a court martial (960622-960805)
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 960318, Special Court Martial for assault consummated by battery. He was sentenced to be discharged with a Bad Conduct Discharge and reduction to the grade of Private (E1).
960806, Special Court Martial for wrongfully communicating a threat. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 45 days and reduction to the grade of Private (E1).
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 22
Current ENL Date: 930916 Current ENL Term: 3 Years ?????
Current ENL Service: 07 Yrs, 01Mos, 10Days Includes 1638 days of excess leave (960619-001212). The applicant was retained in the service 1504 days for the convenience of the government per AR 635-200.
Total Service: 09 Yrs, 11Mos, 08Days ?????
Previous Discharges: RA 901120-930915 HD Immediate Reenlistment
Highest Grade: E4 Performance Ratings Available: Yes No
MOS: 92G1P Food Service Spec GT: 105 EDU: HS Grad Overseas: Korea Combat: None
Decorations/Awards: ARCOM, AAMx2, AGCM, NDSM, NCOPDR, ASR, OSR
V. Post-Discharge Activity
City, State:
Post Service Accomplishments: None provided by the applicant
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 18 March 1996, the applicant was found guilty by a special court-martial of assault consumated by battery. He was sentenced to be discharged with a Bad Conduct Discharge, and reduction to E-1. On 4 June 1996, 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 3 October 1997, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence, and having been affirmed pursuant to Article 71c being complied with, ordered the sentence be executed.
Additionally, the evidence of record shows that on 6 August 1996, the applicant was found guilty by a second special court-martial of wrongfully communicating a threat. He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 45 days and reduction to E-1. On 2 January 1997, 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 March 2003, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. The accused was credited with 46 days of confinement against the sentence to confinement. It was noted that the previous special court martial was affirmed by the U.S. Army Court of Criminal appeals and the bad conduct discharge was ordered executed in the Special Courts Martial Order Number 64, Headquarters, United States Army Armor Center and Fort Knox dated 3 October 1997.
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. 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: 16 February 2010 Location: Washington, D.C.
Did the Applicant Testify? Yes No
Counsel:
Witnesses/Observers: N/A
Exhibits Submitted: N/A
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
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: ?????
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090008419
______________________________________________________________________________
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