Applicant Name: Application Receipt Date: 2008/09/23 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: Date: NIF Discharge Received: Date: 000224 Chapter: 3 AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: Air Defense Center Military Police Company, Fort Bliss, TX Time Lost: None Article 15s (Charges/Dates/Punishment): None in File Courts-Martial (Charges/Dates/Punishment): 990518, SPCM, making a false official statement (990519), wrongfully used cocaine between (990224-990303), and again wrongfully used cocaine between (990312-990319); BCD. Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 27 Current ENL Date: 940513 Current ENL Term: 5 Years Retained past his ETS due to pending SPCM charges Current ENL Service: 05 Yrs, 09Mos, 11Days ????? Total Service: 05 Yrs, 09Mos, 11Days Includes 280 days of excess leave (990519-000224) Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 95B10/Military Police GT: NIF EDU: HS GRAD Overseas: Panama, Saudi Arabia, Kuwait Combat: None Decorations/Awards: AAM x 3, AGCM V. Post-Discharge Activity City, State: Kissimmee, FL Post Service Accomplishments: Attended junior college VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The record (SPCM Order number 5 dated 17 July 1999) shows that the applicant was found guilty by a special court-martial of making a false official statement (990519), wrongfully used cocaine between (990224-990303), and wrongfully used cocaine between (990312-990319). He was sentenced to be discharged with a Bad Conduct Discharge. On 10 October 2002, 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; this document was not found in the applicant's available file however the analyst presumed government regularity in the process. On 24 February 2000, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 10 October 2002, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed. The applicant's record does not contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), however, it does contain an Official Statement of Service from the Human Resources Command dated 14 August 2006, that indicates the applicant served in active duty from 13 May 1994 through 24 February 2000, discharged with a Bad Conduct Discharge, and a reentry code of RE-4. 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 available military records, the issue and documents submitted with the application, the analyst found several mitigating factors that would merit an upgrade of the characterization of service to general, under honorable conditions. 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 court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Army Discharge Review Board is empowered to change the characterization of 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 analyst carefully reviewed the applicant’s military record to include his length of service, quality of service and his post service accomplishments and found that clemency was warranted. Accordingly, the analyst recommends to the Board that the applicant’s characterization of service be upgraded to general, under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 26 January 2009 Location: Washington, D.C. Did the Applicant Testify? Yes No Counsel: Yes 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, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh, and clemency is warranted based on the overall length and quality of the applicant’s service. Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under 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 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: NA ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20080014999 ______________________________________________________________________________ Page 1 of 3 pages