Applicant Name:  ?????

Application Receipt Date: 2009/05/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents 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: 080125   Chapter: 3       AR: 635-200
Reason: Court-Martial, Desertion	   RE:     SPD: JJC   Unit/Location: A Co, 46th Engr Bn, Warrior Bde, Fort Polk, LA 

Time Lost: AWOL and Military Confinement for a total of 1,084 days (010328-031010, apprehended; 040211-040722  confinement).

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

Courts-Martial (Charges/Dates/Punishment): 040616, SPCM, the applicant was found guilty of desertion from 28 March 2001 - 11 October 2003 terminated by apprehension; reduction to Private (E-1), confinement for seven months, and discharged from the service with a Bad Conduct Discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  35
Current ENL Date: 000113    Current ENL Term: 3 Years  ?????
Current ENL Service: 	05 Yrs, 00Mos, 18Days (includes 1282 days of excess leave)
Total Service:  		19 Yrs, 06Mos, 09Days ?????
Previous Discharges: 	ARNG 990616-000114/HD
                                  USARCG 920911-990615/NA
                                       ARNG 880514-920910/HD
                                            RA 901211-910911/HD (Concurrent Service)
                                            RA 840801-870526/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 21R10/Interior Electrician   GT: 99   EDU: HS GRAD   Overseas: Saudi Arabia, Kuwait   Combat: Kuwait (DS -dates NIF)
Decorations/Awards: ARCOM, AAM, AGCM, NDSM (2), SWASM W/3BS, ASR, OSR, AFRM W/M Device, KLM (Saudi Arabia), KLM (Kuwait)

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed by the applicant.





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 11 February 2004, the applicant was found guilty by a special court-martial of desertion on 28 March 2001 terminated by apprehension on 11 October 2003.  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for seven months, and reduction to E-1.  On 16 June 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 16 February 2007, The United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.  On 7 June 2007, 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 comprehensive medical file submitted by the applicant,  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.  The analyst noted the applicant's issue, and the diagnosis of PTSD outlined in the documents with his application.  However, in review of the applicant’s entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted, the applicant fully understood the difference between right and wrong when he committed the misconduct that caused the unit commander to initiate the separation action.  After a thorough review of the applicant’s record and the issue and documents submitted with the application, the analyst found no cause for clemency and therefore recommend to the Board to deny clemency. 
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
        

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 18 December 2009         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 applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 2    No change 3
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 AR20090009590
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