Applicant Name: ????? Application Receipt Date: 2008/11/05 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 and attached document 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: 041019 Chapter: 3 AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: A Co, 319th MI Bn, Fort Bragg, NC Time Lost: Confinement/Military Authorities for 137days (021027-030313), to include pre-trial confinement. Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): 021101, SPCM, disrespectful in language towards a SSG (020926), assault upon a SSG (020926), and failure to report (020926), confinement for six (6) months, forfeiture of $737 x 6 and to be discharged with a BCD. The applicant was credited with 35 days confinement toward the sentence to confinement. Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 19 Current ENL Date: 010801 Current ENL Term: 3 Years ????? Current ENL Service: 02 Yrs, 10Mos, 01Days ????? Total Service: 02 Yrs, 10Mos, 01Days Includes 586 days of excess leave (030314-041019) Previous Discharges: None Highest Grade: E-2 Performance Ratings Available: Yes No MOS: None GT: 83 EDU: 12 Years Overseas: None Combat: None Decorations/Awards: None V. Post-Discharge Activity City, State: Norfolk, VA Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 11 November 2002, the applicant was found guilty by a special court-martial of disrespectful in language towards a SSG (020926), assault upon a SSG (020926), and failure to report (020926). He was sentenced to confinement for six (6) months, forfeiture of $737 x 6 and a BCD. On 9 June 2003, 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 2 April 2004, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 27 August 2004, 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; however, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Finally, although the applicant alleges that he was a victim of racism during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. 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: 4 May 2009 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 AR20080017983 ______________________________________________________________________________ Page 1 of 3 pages