Applicant Name: Application Receipt Date: 2009/02/02 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 and the 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: 971008 Chapter: 3 AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: HHC, USAG, 43rd Support Group, Ft Carson, CO Time Lost: Military confinement (960326-960619) 86 days Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): 960325, Special Court-Martial, conspiracy, larceny, forgery and presenting a false claim, all charges guilty; reduced to E1, forfeit $350 pay per month for 5 months, confined for 5 months (confinement in excess of four months is suspended until 15 July 1996, with provisions for automatic remission) and to be discharged from the service with a bad conduct discharge. Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 19 Current ENL Date: 930803 Current ENL Term: 4 Years ????? Current ENL Service: 03 Yrs, 11Mos, 10Days ????? Total Service: 03 Yrs, 11Mos, 10Days Excess leave (960708-971008) 458 days Previous Discharges: None Highest Grade: E4 Performance Ratings Available: Yes No MOS: 71D10/Legal Specialist GT: 108 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: AAM, NDSM, ASR V. Post-Discharge Activity City, State: San Antonio, TX Post Service Accomplishments: States that he has been employed since his discharge but does not provide any supporting documents. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 25 March 1996, the applicant was found guilty by a special court-martial of conspiracy to make false claim (941129), conspiracy to commit forgery (941202); larceny of military property and forgery (941202), frauds against the US by making and presenting a false claim (941130). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 5 months, forfeiture of $350 pay per month for a period of 5 months, and reduction to E-1. On 12 June 1996, 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 14 May 1997, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 11 September 1997, 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. 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. Furthermore, the analyst noted the applicant's issue; however, the record does not support any allegations and the applicant provides no evidence that the command was arbitrary or capricious. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the analyst noted that the applicant met entrance qualification standards to include age. There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service. After a thorough review of the applicant’s record and the issue and documents submitted with the application, the analyst found no cause for clemency and therefore recommend to the Board to deny clemency. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 5 October 2009 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: Yes Witnesses/Observers: None Exhibits Submitted: The applicant submitted a statement from his wife and an education advisor. He also provided a copy of his home deed, resume, certifications, achievements and a family photo. 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, quality of the applicant’s service and his post service accomplishments of achievements in the community and business. 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 4 No change 1 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 AR20090005640 ______________________________________________________________________________ Page 1 of 3 pages