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 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: 060324   Chapter: 3     AR: 635-200
Reason: Court-Martial	   RE:     SPD: JJD   Unit/Location: A Battery, 3/319 FAR, 82nd Airborne Div, Ft Bragg, NC 

Time Lost: Military Confinement (050422-050729)

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 050422, Special CM, wrongfully used cocaine on two occasions (050301 and on or about 050310), disorderly conduct between on or about (050304-050305); unlawfully entered the dwelling of a SPC and Mrs on or about (050305); sentenced with a BCD and confinement for four months.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 030624    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 05Mos, 23Days ?????
Total Service:  		5 Yrs, 11Mos, 21Days Excess leave (238 days)
Previous Discharges: 	ARNG 980209-030623/HD
                                       RA 980323-980721/UNC
                                     IADT 000127/000514/UNC
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 13B/Cannon Crewmember   GT: 95   EDU: Associate's Degree   Overseas: Hawaii   Combat: None
Decorations/Awards: ARCAM, NDSM, ASR

V.  Post-Discharge Activity
City, State:  Kapolei, HI
Post Service Accomplishments: None submitted by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 April 2005, the applicant was found guilty by a special court-martial of wrongful use of cocaine on two occasions, disorderly counduct,  and unlawfully entered the dwelling of a SPC and a civilian female, to be discharged with a Bad Conduct Discharge and confinement for four months.  On 29 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 26 September 2005, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 5 January 2006, 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.  The analyst noted the applicant's issue; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  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: 30 October 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

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 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: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090005655
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