Applicant Name: ?????
Application Receipt Date: 2010/12/27 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states in effect, that he was involved in a training accident at the NTC while preparing for deployment. He was sent to Iraq in spite of his training injuries. While home on emergency leave he flipped out and went AWOL. Upon returning after his period of AWOL, he was sent to Iraq again with PTSD, TBI, chronic major depression and was forced to complete his tour unarmed.
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: 090828 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: A Company, Mobilization Holding Battalion, Ft. Stewart, GA
Time Lost: Military confinement (060915-061125)
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): 070309, SPCM for: with intent to avoid hazardous duty, quit his unit and remained absent in desertion (050807-050907), disrespectful language and deportment toward warrant officer (060223), disrespectful language and deportment toward a CSM (060407), AWOL x 2(060828-060829) and (060918-060920), wrongfully use cocaine (060917-060920), and behaving with disrespect to a CPT (060719); BCD, confinement for three months, reduction to E-1.
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 49
Current ENL Date: OAD 050103 Current ENL Term: ????? Years 545 days
Current ENL Service: 3 Yrs, 9Mos, 11Days Includes 1007 days of excess leave (061126-090828)
Total Service: 23 Yrs, 9Mos, 13Days (3yr,11mo,3day prior active service/16yr,29days prior inactive service)
Previous Discharges: ARNG 821020-860107/HD
RA 860108-890106/HD
ANG 900530-911108/HD
USAFR 921205-960529/HD
ARNG 960929-970821/GD
ARNG 030926-061024/GD
Highest Grade: E-4 Performance Ratings Available: Yes No
MOS: 91W10 Metal Worker GT: 108 EDU: HS Equivalency Overseas: Germany Combat: Kuwait & Iraq (dates NIF)
Decorations/Awards: ASR, OSR
V. Post-Discharge Activity
City, State: Hampton, GA
Post Service Accomplishments: None provided by the applicant.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 25 October 2006, the applicant was found guilty by a special court-martial of; with intent to avoid hazardous duty, quit his unit and remained absent in desertion (050807-050907), disrespectful language and deportment toward warrant officer (060223), disrespectful language and deportment toward a CSM (060407), AWOL x 2 (060828-060829) and (060918-060920), wrongfully used cocaine (060917-060920) and behaving with disrespect towards a CPT (060719); He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 3 months, and reduction to E-1.
On 9 March 2007, 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 28 December 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.
On 23 June 2009, 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, the issue and 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 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 record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder , TBI, or the other medical conditions described and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.
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, the analyst noted the applicant's issue about disability; however, the correction the applicant requests to be made to the DD Form 214, does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization.
After a thorough review of the applicants records 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: 21 April 2011 Location: Atlanta, GA
Did the Applicant Testify? Yes No
Counsel: [ redacted ] State Dept of Veteran Service
Witnesses/Observers: None
Exhibits Submitted: DD Form 293, DD Form 214, Transition Point Order, Court-Martial Order
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 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:
Legend:
AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial
BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial
CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge
DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable
FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20100030428
______________________________________________________________________________
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