Applicant Name: ?????
Application Receipt Date: 2010/02/02 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: NIF Date: NIF
Discharge Received: Date: 071019 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: A Co, 1-9th IN Regmt, Fort Carson, CO
Time Lost: AWOL for 120 days (060128-060527), mode of return unknown; Confinement/Military Authorities for 186 days (060530-061205). Total time lost 306 days.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 060815, SPCM, AWOL (060128-060528), failure to report x 4 (051216), (051217), (051217), (051229); disrespectful in language toward a SSG (060128), disrespectful in deportment toward a 1SG (060128), wrongfully transporting an unregistered firearm on Fort Carson, and wrongful use of cocaine x 2 (060101-060104) and (051124-051128); confinement for ten (10) months and a bad conduct discharge. The applicant was credited with 76 days of confinement against the sentence to confinement.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 18
Current ENL Date: 030624 Current ENL Term: 4 Years ?????
Current ENL Service: 03 Yrs, 05Mos, 20Days ?????
Total Service: 03 Yrs, 05Mos, 20Days includes 318 days of excess leave (061206-071019)
Previous Discharges: None
Highest Grade: E-4 Performance Ratings Available: Yes No
MOS: 11B10 Infantryman GT: 104 EDU: HS Grad Overseas: Korea/Southwest Asia Combat: Iraq (040615-050722)
Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, CIB
V. Post-Discharge Activity
City, State: West Palm Beach, FL
Post Service Accomplishments: None Listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 15 August 2006, the applicant was found guilty by a special court-martial of AWOL (060128-060528), failure to report x 4 (051216), (051217), (051217), (051229); disrespectful in language toward a SSG (060128), disrespectful in deportment toward a 1SG (060128), wrongfully transporting an unregistered firearm on Fort Carson, and wrongful use of cocaine x 2 (060101-060104) and (051124-051128). He was sentenced to confinement for ten (10) months and a bad conduct discharge. The applicant was credited with 76 days of confinement against the sentence to confinement.
On 8 November 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 19 January 2007, The United States Army Court of Military Review 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 applicants military records during the period of enlistment under review, the issues and documents submitted with the application, 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 applicants record and the issues he submitted, the analyst found no cause for clemency and recommends to the Board no clemency.
The analyst noted the applicant's issue in regards to having a concealed weapon on a military installation; however, the evidence of record shows that he was made aware of the guidance under the proivision of Fort Carson Regulation 210-18, paragraph 2-5, dated 15 May 1997, as annotated in the court-marial.
Additionally, concerning the applicant's issue not knowing that he was suffering from Post Traumatic Stress Disorder (PTSD), as stated in his issue; however, the applicant indicated in his application that the unit did conduct a generic mass screening for PTSD, he filled out a questionaire and also indicated that he was in denial of having PTSD.
Furthermore, paragraph 1-32, AR 635-200, states medical examinations incident to separation under other provisions of this regulation are not required but will be administered if requested in writing by the Soldier.
Further, the file was void of any evidence of PTSD or injuries sustained by the applicant while in Iraq, only his contention and the applicant did not provide any corroborating evidence of the aforementioned medical issues.
Therefore, 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: 26 March 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 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
(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 AR20100008065
______________________________________________________________________________
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