Applicant Name: ????? Application Receipt Date: 2009/06/22 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See enclosed 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: 070727 Chapter: 3 AR: 635-200 Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: Regimental Headquarters and Headquarters Troop (Rear) (Provisional), Fort Carson, CO Time Lost: AWOL x 2 for 79 days (050720-050818), surrendered and ( 051116-060105), mode of return unknown. Article 15s (Charges/Dates/Punishment): 051103, failure to report (051028), it appears that the Article 15 was not executed. 041118, wrongful use of marijuana; reduction to E-3, forfeiture of $784 pay x 2 months, extra duty for 30 days, and restriction for 30 days (FG). However, this Article 15 is not part of the available record, Courts-Martial (Charges/Dates/Punishment): 060222, SPCM, desertion to avoid hazardous duty, namely service in Iraq (050720-050818), AWOL (051116-060105), wrongful use of marijuana (051205-060105), and wrongful use of cocaine (060102-060105); reduction to E-1, confinement for four (4) months, and a bad conduct discharge. The automatic forfeiture of pay was deferred effective 8 March 2006 until 12 June 2006. The applicant was credited with 62 days of confinement against the sentence to confinement. Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 21 Current ENL Date: 020827 Current ENL Term: 4 Years ????? Current ENL Service: 04 Yrs, 08Mos, 12Days ????? Total Service: 04 Yrs, 10Mos, 18Days includes 30 days of excess leave (060427-060526) Previous Discharges: USAR-020621-020826/NA Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 19K10 M1 Armor Crewman GT: 85 EDU: HS Grad Overseas: Southwest Asia Combat: Iraq (Dates NIF) Decorations/Awards: ARCOM, NDSM, ICM, GWOTEM, GWOTSM, ASR V. Post-Discharge Activity City, State: Highland Home, AL Post Service Accomplishments: The applicant provided a ducument that shows he has been employed as a metal stamping technician since June 5, 2009. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 22 February 2005, the applicant was found guilty by a special court-martial of desertion to avoid hazardous duty, namely service in Iraq (050720-050818), AWOL (051116-060105), wrongful use of marijuana (051205-060105), and wrongful use of cocaine (060102-060105). He was sentenced to reduction to E-1, confinement for four (4) months, and a bad conduct discharge. The automatic forfeiiture of pay was deferred effective 8 March 2006 until 12 June 2006. The applicant was credited with 62 days of confinement against the sentence to confinement. On 12 June 2006, 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 11 September 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 26 January 2007, 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 regarding the diagnosis of Post Traumatic Stress Disorder (PTSD); however, in review of the applicant’s entire service record to include the record of trial, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted. Further, the evidence of record shows that during the applicant's evaluation with the Sanity Board, the Forensic Psychiatrist, COL MC, Department of Behavioral Health indicated in his findings that the applicant fully understood the nature and quality and wrongfulness of his conduct at the time he committed the misconduct that led to his court-martial. Additionally, in reference to the applicant's issue regarding his current mental status as outlined in his application; the applicant might want to consider seeking assistance from the States' Veterans Service Organizations or a State Mental Health Facility. 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: 6 January 2010 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 AR20090011190 ______________________________________________________________________________ Page 1 of 3 pages