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ARMY | DRB | CY1999 | AR1999021244
Original file (AR1999021244.rtf) Auto-classification: Denied
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: BCD

2. Date of discharge (or REFRAD): 980410

3. Authority for separation:

         a. Regulation: Chapter 3, AR 635-200

          b. Reason: Court-Martial, Other
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            NONE
a. Period entered for: 6 Years
b. Entry date: 940825
c. Age: 31 Years DOB: 620903
d. Educational level: 13 Years
e. Aptitude area score:
          GT: 101 3. Highest grade achieved:
f. Length of Service: E5
3 Years 7 Months 16 Days

4. Performance evaluations:
See OMPF.

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence: NONE

 Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data:

         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)
                   960731 Assault consummated by a battery, six (6) specifications
                  (950915); (951201); (960315); indecent language (950915)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: NONE
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         USMC 800716 801212 HD
         ARNGUS 850927 860926 HD
         RA 881128 920421 HD
         RA 920422 940824 HD



PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

         a. The evidence of record shows that on 31 July 1996, the applicant was found guilty by a special court-martial of six specifications of assault consummated by a battery on 15 September 1995, 1 December 1995, and 15 March 1996; and of indecent language on 15 September 1995. The applicant was sentenced to receive a bad conduct discharge, to be reduced to the grade of E1, and was reprimanded for making unlawful sexual advances toward three subordinate female soldiers in his unit. On 30 September 1996, the sentence was approved, and on
10 February 1998, the sentence having been affirmed pursuant to Article 71(c) having been complied with, the bad conduct discharge portion of the sentence was ordered to be executed.

         b. On 10 April 1998, the applicant was discharged with a bad conduct discharge. At the time of his discharge he had completed 3 years, 7 months,
16 days of his current enlistment, and a total of 10 years, 9 months and 10 days of active military service.

         c. The applicant’s records shows that he had completed almost 11 years of active service; attained the rank of sergeant/E-5. The available records reflect that the applicant was found guilty by special court-martial of six specifications of assault consummated by battery and of indecent language. He was sentenced to a bad conduct discharge, reduced in rank to private/E-1; and to a reprimand. Upon completion of appellate review the bad conduct discharge was ordered executed and the applicant was discharged accordingly.

2. Legal/Regulatory Basis for Separation Action : 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.

SECTION B-APPLICANT’S SUBMISSIONS


 1. Issue(s) of propriety and/or equity submitted by applicant or counsel.
As stated on applicant’s DD Form 293.
2. Exhibit(s) submitted:

         A-1: DD Form 293, dated 980507, with one (1) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE

PART IV - PREHEARING REVIEW (CONTINUED)



SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor ( ) Legal Advisor



 a. Medical prehearing comments (if applicable):

b. Legal prehearing comments (if applicable):
PART V - SUMMARY OF HEARING

SECTION A-Attendees and exhibits

1. Review/hearing information:

         a. Type requested:
         ( ) Records review ( X ) Hearing

         b. Type Held:
         ( )Records review ( X ) Hearing Examiner
         ( ) Tender Offer

         c. Review/hearing location and date:
                  Video Site: Tampa, Florida on 13 May 1999 .
                  Board Site: Washington D.C. on 19 May 1999 .

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
         Counsel ( X ) Yes ( ) No

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( X ) Yes ( ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: Forty (40) additional documents.

PART VI - ISSUES AND FINDINGS

1. a. Applicant's issue(s) of propriety and/or equity:

          ( X )   Same as those listed on DD Form 293 and Part IV, Section A of this case report and directive.
         ( )     Revised issue(s) furnished in writing by applicant as follows:
         ( )     Additional issue(s) identified during review/hearing as follows:
         b. Request: ( X ) Recharacterization ( ) Change of Reason


2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:


          a. Propriety:    The applicant has not submitted an issue of propriety and the ADRB has not otherwise relied upon an issue of propriety to change the discharge.
         b. Equity:       The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.


 (1) The issue is rejected. The Board noted the applicant’s contention that, in effect, he needs his discharge upgraded in order to pursue a career in law enforcement. However, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 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 ADRB 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 any issues submitted, the Board found no cause for clemency and therefore voted to deny relief.


3. Response(s) to item(s) not addressed as decisional issue(s): NONE
PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.       Board conclusion(s):

         The discharge was:

          ( X )    Proper.
         ( )      Improper as to characterization. Change characterization to                                      .
         ( )      Improper as to reason. Change reason to                         under                       .

         ( X )    Equitable.
         ( )      Inequitable as to characterization. Change characterization to                                .
         ( )      Inequitable as to reason. Change reason to                       
                  under                                  .
         ( )      Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                          .
2. Voting record: Change No Change
         Reason 0 5
Characterization 0 5

         The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below. The request must contain the CASE NO. located in the upper right corner of this document.

Department of the Army Review Boards Agency
ATTN: Promulgation Team
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508



3. Minority views: NONE

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

                                 
MR. ADRIANCE
Case Reviewing Official 


PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
SECTION B - CERTIFICATION

Approval Authority:


THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




SUZANNE WALKER
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge          C - Other
B - Material submitted by applicant

INDEX RECORD:

 AR Number: 1999021244 INDEX NUMBERS: A9217
Date of Review: 990519 A9221
Character of Service: BD A0100
Date of Discharge: 980410
Authority: AR 635-200 C3
Reason: A6800
Results of Board Action/
Vote/Affirmation: NC 5-0 A













PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR
1.      Mbr      X          X    
2.      Mbr      X          X    
3.      Mbr      X          X    
4.      Mbr      X          X    
5.      Mbr      X          X    

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