Applicant Name:  ?????

Application Receipt Date: 2009/06/22	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 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: 	NIF   Date: NIF
Discharge Received: 			   Date: 070727   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Regimental Headquarters and Headquarters Troop (Rear) (Provisional), Fort Carson, CO 

Time Lost: AWOL x 2 for 79 days (050720-050818), surrendered and ( 051116-060105), mode of return unknown.  

Article 15s (Charges/Dates/Punishment): 051103, failure to report (051028), it appears that the Article 15 was not executed.

041118, wrongful use of marijuana; reduction to E-3, forfeiture of $784 pay x 2 months, extra duty for 30 days, and restriction for 30 days (FG).  However, this Article 15 is not part of the available record, 

Courts-Martial (Charges/Dates/Punishment): 060222, SPCM, desertion to avoid hazardous duty, namely service in Iraq (050720-050818), AWOL (051116-060105), wrongful use of marijuana (051205-060105), and wrongful use of cocaine (060102-060105); reduction to E-1, confinement for four (4) months, and a bad conduct discharge.  The automatic forfeiture of pay was deferred effective 8 March 2006 until 12 June 2006.  The applicant was credited with 62 days of confinement against the sentence to confinement.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 020827    Current ENL Term: 4 Years  ?????
Current ENL Service: 	04 Yrs, 08Mos, 12Days ?????
Total Service:  		04 Yrs, 10Mos, 18Days includes 30 days of excess leave (060427-060526) 
Previous Discharges: 	USAR-020621-020826/NA
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 19K10 M1 Armor Crewman   GT: 85   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (Dates NIF)
Decorations/Awards: ARCOM, NDSM, ICM, GWOTEM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Highland Home, AL
Post Service Accomplishments: The applicant provided a ducument that shows he has been  employed as a metal stamping technician since June 5, 2009.




 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 February 2005, the applicant was found guilty by a special court-martial of desertion to avoid hazardous duty, namely service in Iraq (050720-050818), AWOL (051116-060105), wrongful use of marijuana (051205-060105), and wrongful use of cocaine (060102-060105).  He was sentenced to reduction to E-1, confinement for four (4) months, and a bad conduct discharge.  The automatic forfeiiture of pay was deferred effective 8 March 2006 until 12 June 2006.  The applicant was credited with 62 days of confinement against the sentence to confinement.  On 12 June 2006, 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 11 September 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 26 January 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 during the period of enlistment under review, the issues and document he submitted, the analyst found no mitigating factors that would warrant clemency.  The evidence of record clearly shows that the applicant was adjudged guilty by 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 Board is empowered to change 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 applicant’s record and the issues he submitted, the analyst found no cause for clemency and recommends to the Board no clemency.  Furthermore, the analyst noted the applicant's issue regarding the diagnosis of Post Traumatic Stress Disorder (PTSD); however, in review of the applicant’s entire service record to include the record of trial, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted.  Further, the evidence of record shows that during the applicant's evaluation with the Sanity Board, the Forensic Psychiatrist, COL MC, Department of Behavioral Health indicated in his findings that the applicant fully understood the nature and quality and wrongfulness of his conduct at the time he committed the misconduct that led to his court-martial.  Additionally, in reference to the applicant's issue regarding his current mental status as outlined in his application; the applicant might want to consider seeking assistance from the States' Veterans Service Organizations or a State Mental Health Facility.  In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service  were both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 6 January 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 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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090011190
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