Application Receipt Date: 060405 Prior Review Prior Review Date: None I. Applicant Request Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293. II. Were Proper Discharge and Separation Authority procedures followed? Yes No Tender Offer: ????? See Attachments: Legal Medical Minority Opinion Exhibits III. Original Character of Discharge Unit CDR Recommended Discharge: Date: 050609 Discharge Received: Date: 060310 Chapter: 3 AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: 202nd MPC 765th Trans Bn Fort Eustis, VA 23604 Time Lost: AWOL x 2- for a total of 252 days (040805-050210) and (050226-050411). He was apprehended by civil authorities in Springfield, MO, on 21 February 2005 and transferred to Fort Knox, KY. The applicant was confined by Military Authorities for 81 days as a result of his SPCM (050609-050829). The applicant's report of return of absentee (DD Form 616) shows he was apprehended on 21 February 2005, however, he was still being carried as AWOL, see SPCM order and DD Form 214. Article 15s (Charges/Dates/Punishment): None Court-Martials (Charges/Dates/Punishment): SPCM-AWOL from his unit, with the intent to remain away permanently, did so remain absent in desertion until apprehended (040805-050211), AWOL from his unit, with the intent to remain away permanently, did so remain absent in desertion until apprehended (050226-050412), communicate to a civilian, a threat to kill a SSG (040915), unlawfully carry on or about his person a concealed weapon, a 9mm semi-automatic pistol (050412). He was sentenced to be discharged with a bad-conduct discharge, confinement for 6 months, and reduction to the grade of Private/E-1. Counseling Records Available: Yes No IV. Soldier’s Overall Record DOB: 810918 Current ENL Date: 031006 Current ENL Term: 3 Years The applicant was placed on involuntary excess leave for a total of 193 days from (040805-050210). Current ENL Service: 01 Yrs, 06 Mos, 00Days ????? Total Service: 06 Yrs, 03 Mos, 08 Days ????? Previous Discharges: ARNG-981123-990111/NA ADT-990112-990521/HD ARNG-990522-010429/NA RA-010430-031005/HD Highest Grade: E4 Performance Ratings Available: Yes No MOS: 11B10 Infantryman GT: 101 EDU: GED Overseas: None Combat: None Decorations/Awards: NDSM, ASR V. Post-Discharge Activity Home of Record: Current Address: Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: Evidence of record reveals that on 9 June 2005, the applicant was found guilty by a Special Court-Martial of AWOL from his unit, with the intent to remain away permanently, did so remain absent in desertion until apprehended (040805-050211), AWOL from his unit, with the intent to remain away permanently, did so remain absent in desertion until apprehended (050226-050412), communicate to a civilian, a threat to kill a SSG (040915), unlawfully carry on or about his person a concealed weapon, a 9mm semi-automatic pistol (050412.) He was sentenced to be discharged with a bad-conduct discharge, confinement for 6 months, and reduction to the grade of Private/E-1. The accused was credited with 68 days of confinement against the sentence to confinement. On 14 July 2005, 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 12 August 2005, the United States Army Court Of Military Review affirmed the findings of guilty and the sentence as approved. On 5 January 2006, the sentence having been affirmed pursuant to Article 71© having been complied with, the sentence was ordered to be executed. The applicant claims he was deployed to Saudia Arabia (010900-020300), OEF, deployed to GTMO, Camp Delta (021100-030800), OEF, and TDY to Bagram, Afghanistan, air bridge missions. However, documentation to support this claim is not a part of the available military record. His DD Form 214 is annotated that applicant was separated from service on temporary records will be issued a DD Form 215 to provide missing information. 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 careful review of all the applicant’s military records during the period of enlistment under review and the issue he submitted, 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 issue he submitted, the analyst found no cause for clemency and therefore recommends to the Board that clemency is not warranted. In view of the aforementioned, the characterization of service and the reason for discharge remains both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 070214 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA VIII. Board Decision The discharge was: Proper Improper Equitable Inequitable The characterization of service was: Proper Improper Equitable Inequitable The narrative reasons were: Equitable Inequitable DRB voting record: Change No change (Character) Change No change (Reason) (Board member names available upon request) IX. 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. Case report reviewed and verified by: Mr. Kenneth McFarley, Examiner X. Board Action Directed No Change Issue a new DD Form 214 Change Characterization to: Change Reason to: None Other: NA RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature and Date Approval Authority: ROBERT L. HOUSE Colonel, U.S. Army President, Army Discharge Review Board Official: MARY E. SHAW DATE: 070216 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20060005254 Applicant Name: Mr. ______________________________________________________________________ Page 6 of 6 pages