Applicant Name:  ?????

Application Receipt Date: 2009/05/20	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:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: Not In File (NIF)
Discharge Received: 			   Date: 970423   Chapter: 3, Section IV    AR: 635-200
Reason: Court Martial, Other	   RE:     SPD: JJD   Unit/Location: C Btry, 4-82 FA Bn, Fort Polk, LA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 940722, SPCM, wrongful use of cocaine (940303), failure to comply with conditions of his parole (931019-940415), reduction to E-1, Bad Conduct Discharge.

The record contains two other Special Courts Martial from a prior period of honorable service (830615 and 810910).  The charges were related to wrongful use, wrongful possesion and wrongful transfer of cocaine.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  36
Current ENL Date: 930205    Current ENL Term: 2 Years  5 months (extension)
Current ENL Service: 	04 Yrs, 02Mos, 18Days Includes 809 days of excess leave (950205-970423)
Total Service:  		20 Yrs, 09Mos, 04Days ?????
Previous Discharges: 	RA 760720-800129/HD
                                       RA 800130-870115/HD
                                       RA 870116-930204/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 13E30/Cannon Fire Direction Spc   GT: NIF   EDU: HS Grad   Overseas: SWA   Combat: SWA (901113-910316)
Decorations/Awards: ARCOM, AAM-3, AGCM-4, NDSM-2, SWA W/2BSS, ASR, OSR-2, KLM (SA), KLM (Kuwait)

V.  Post-Discharge Activity
City, State:  Providence, RI
Post Service Accomplishments: The applicant states that he has been continuosly employed since 1998.  For seven years he held a position at a major hospital as the security manager.   For the last five years he has worked as the director of operations for a security company.  He feels he is a productive citizen who should be given a second chance.  No supporting documentation was provided. 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 July 1994, the applicant was found guilty by a special court-martial of wrongfully using cocaine (940303) and failure to comply with the conditions of his parole (931019-940415).  
       He was sentenced to be discharged with a Bad Conduct Discharge and reduction to E-1.  On 28 September 1994, the sentence was approved.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Criminal Appeals.  On 24 February 1997, The United States Army Court of Criminal Appeals dismissed the charge of failure to comply with the conditions of his parole and set aside the charge and the finding of guilty.  The remaining findings of guilty were affirmed.  The sentence of reduction to PVT/E-1 and the and the Bad Conduct Discharge were affirmed.  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, 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 Applicant contends that since leaving the Army, he has been employed continuously since 1998.  For seven years he held a position with a major hospital as the security manager and for the last five  years he has been the director of operations for a security company and a productive citizen of his community.  The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.
       
       The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  
       
       Further, eligibility for veteran's benefits to include medical and educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       After a thorough review of the applicant’s 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: 19 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 applicant’s record of service during the period of enlistment under review and considering the analyst’s 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 AR20090009934
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