Applicant Name:  
Application Receipt Date: 071031	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See 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: 	   Date: NIF
Discharge Received: 			   Date: 990818   Chapter: 3     AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Btry A, 3-320th FA, 101st ABN DIV (AASLT), Fort Campbell, KY 

Time Lost: AWOL x 4 for 184 days (970127-970204; 970319-970613; 970621-970914; 970915-970916), surrendered.  Total loss time 184 days.

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

Courts-Martial (Charges/Dates/Punishment): 970915, SPCM, desertion from on or about 19 March 1997 until on or about 14 July 1997.  He was sentenced to a BCD, confinement for 90 days, forfeiture of $600.00 X 4.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  17
Current ENL Date: 960814    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 06Mos, 01Days (Includes excess leave of 700 days (970918-990819)
Total Service:  		02 Yrs, 06Mos, 01Days ?????
Previous Discharges: 	None
Highest Grade: E1		Performance Ratings Available: Yes    No 
MOS: 13B/Cannon Cremember   GT: 94   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Tornillo, TX
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 September 1997, the applicant was found guilty by a special court-martial of desertion from on or about 19 March 1997 until on or about 14 July 1997.  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 90 days, and forfeiture of $600 X 4.  On 11 November 1997, 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.  The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 14 January 1999, 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 and recommends to the Board no 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.  After a thorough review of the applicant’s record and the issue he submitted, the analyst found no cause for clemency and therefore recommend to the Board no clemency.  Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment.  

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 18 September 2008         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: None

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 clemency was warranted.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to Under other than Honorable Conditions.  A change in the reason for discharge is not authorized under Federal statute.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
Issue a new DD Form 214  					         Colonel, U.S. Army
Change Characterization to:    President, Army Discharge Review Board 
Change Reason to:  
Other: NA										
RE Code: 									 
Grade Restoration:   No   Yes   Grade: ?????
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070019021
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