Applicant Name:  ?????

Application Receipt Date: 2011/09/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "Although I take full responsibility for my actions and made a seriously error in judgment, I plead guilty to two misdemeanor charges during a special courts martial and was separated from the United States Army.  The charges that I plead guilty to were committing an Indecent act (Having sexual relations with another person present) and Dereliction of duty (Having a female in my barracks room with out being signed in).  The severity of the punishment did not fit the charges that I plead guilty to. The charges that I plead guilty to are normally dealt with by Company Punishment (Article 15). The punishment would have consisted of reduction in rank and loss of pay.  During my term of service my performance did not reflect that I was "unsuitable" to be a solder, But the opposite. I had several NCO's claim that I was an "outstanding soldier" and " Would go to war with me any day" and many other comments. I feel that my history of performance in the military was not taken into account.  Even though I am no longer in the military, I am in the public service field as an Emergency Medical Technician (EMT) training to be a paramedic. There will never be anything that can be done about the charges placed against me but the status of my discharge will prevent me from ever truly being able to help society in any meaningful way"

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: 	   Date: NIF
Discharge Received: 			   Date: BCD   Chapter: 3    AR: 635-200
Reason: Court Martial, Other	   RE:     SPD: JJD   Unit/Location: 55th MP Co, Camp Casey, Korea 

Time Lost: 60 days, military confinement (100212-100412)

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

Courts-Martial (Charges/Dates/Punishment): 100212, wrongfully commit indecent conduct by engaging in sexual intercourse in the prescence of another person (090606), dereliction of duty by having non-military visitors under the age of 18 in his barracks room past visitation hours (090606).  Reduction to E-1, confinement for 90 days and a bad conduct discharge (SPCM)

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 080424    Current ENL Term: 4 Years  ?????
Current ENL Service: 	02 Yrs, 11Mos, 12Days Includes 377 days of excess leave (100526-110606)
Total Service:  		02 Yrs, 11Mos, 12Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 31B10/Military Police Spc   GT: NIF   EDU: GED   Overseas: Korea   Combat: None
Decorations/Awards: NDSM, KDSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Glenn Dale, MD
Post Service Accomplishments: Applicant states he is training to become a paramedic.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 12 February 2010, the applicant was found guilty by a special court-martial of wrongfully committing indecent conduct by engaging in sexual intercourse in the prescence of another person (090606), and dereliction of duty by having non-military visitors under the age of 18 in his barracks room past visitation hours (090606).  
       
       He was sentenced to reduction to E-1, confinement for 90 days and a bad conduct discharge.
       
       On 16 April 2010, the sentence was approved except for the portion pertaining to the bad conduct discharge.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  The applicant was credited with 14 days of confinement against the sentence of confinement.
       
       On 17 February 2011, the sentence having been affirmed 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.  Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The ADRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, the issue and documents submitted with the application, 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 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 applicant requests that the reason for his discharge be changed; however, the Army Discharge Review Board does not have the authority to change the when it has been adjudged by a court-martial.  
       
       The applicant also contends that his sentence did not fit the crime and thinks it is too severe. 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.  
       
       After a thorough review of the applicant’s records and the issue and documents submitted with the application, the analyst found no cause for clemency and therefore recommends to the Board to deny clemency. 
       
       
       
       
       
       
        

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 28 February 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214, court-martial documents, a self-authored statement, and twelve character reference letters.

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						
Board Vote:
Character - Change 0    No change 5
Reason -     Change NA    No change NA
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
?????



Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110019312
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