Applicant Name: ?????
Application Receipt Date: 2009/05/22 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states: "This Discharge should of been a General or Honorable court Martial, I pled gulty to the charges, to keep the sentence Limited to a 9 month sentance and NO BDC, I was not adjuicated a BDC or Dishonorable discharge at the time of court Martial." He provides several documents for the Board's consideration including a two page self-authored statement..
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: 070702
Discharge Received: Date: 090327 Chapter: 3 AR: 635-200
Reason: Court Martial, Other RE: SPD: JJD Unit/Location: A Co, 447th Signal Bn, Fort Gordon, GA
Time Lost: 259 days, military confinement (071106-080721).
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 071106, SPCM, with intent to deceive provided a false statement (061229), failure to report on four occasions (070820-070821), larceny of $500, the property of Allstate Insurance Co. (061229), conspiracy to commit larceny (070116), Bad Conduct Discharge, confinement for 9 months.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 22
Current ENL Date: 060412 Current ENL Term: 4 Years ?????
Current ENL Service: 02 Yrs, 03Mos, 00Days ?????
Total Service: 02 Yrs, 03Mos, 00Days ?????
Previous Discharges: None
Highest Grade: E-3 Performance Ratings Available: Yes No
MOS: 25C10/Radio Opr GT: 118 EDU: NIF Overseas: None Combat: None
Decorations/Awards: None in the record. The applicant states he received a AAM, NDSM, GWOTSM, and ASR.,
V. Post-Discharge Activity
City, State: Canoga Park, CA
Post Service Accomplishments: None
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 6 November 2007, the applicant was found guilty by a special court-martial of stealing money in the amount of $500.00, conspiracy to commit larceny, with intent to defraud providing a false statement, and failure to report to his assigned place of duty on four occasions. He was sentenced to be discharged with a Bad Conduct Discharge, and confinement for 9 months. On 7 March 2008, 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. The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 17 October 2008, 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 and the documents submitted with the application, 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, 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 documents] 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: 12 March 2010 Location: Washington, D.C.
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: NA
Other: NA
RE Code:
Grade Restoration: No Yes Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090008967
______________________________________________________________________________
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