Applicant Name: ?????
Application Receipt Date: 081027 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See DD Form 293 and supporting documentation submitted by the Appplicant.
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: 070928 Chapter: 3 AR: 635-200
Reason: Court-Martial, Other RE: SPD: JJD Unit/Location: 4th Chem Co., 702d Main Spt Bn, Div Spt Cmd, 2d Inf Div, APO AP 96224
Time Lost: Military confinement 179 days (050119-050613).
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): SCM, 050119, Indecent assault upon another Soldier, not his wife, with the intent to gratify his sexual desires; Reduction to E1, confinement for 179 days, and a bad conduct discharge (050513)
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 33
Current ENL Date: 011108 Current ENL Term: Indefinite Years ?????
Current ENL Service: 05 Yrs, 10 Mos, 21 Days Excess leave (837 days)
Total Service: 20 Yrs, 09 Mos, 25 Days ?????
Previous Discharges: RA - 891117-910321/HD
RA - 910322-960807/HD
RA - 960808-011107/HD
Highest Grade: E7 Performance Ratings Available: Yes No
MOS: 74D Chem Op Spec GT: 104 EDU: HS Grad Overseas: Republic of Korea, Germany Combat: None
Decorations/Awards: MSM, ARCOM (2), AAM (4), AGCM (6), NDSM, KDSM, NCOPDR (3), OSR (3)
V. Post-Discharge Activity
City, State: Tacoma, WA
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 19 January 2005, the Applicant was found guilty by a special court-martial of committing an indecent assault upon a Soldier, not his wife, with the intent to gratify his sexual desires (041003). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 179 days, and reduction to E-1. On 13 May 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 29 September 2006, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 22 February 2007, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed.
Record of evidence contains a Military Police Report, dated 4 April 2000, with regard to the Applicant's arrest for assault of his wife (1 April 2000).
Record of evidence contains a General Officer's Administrative Memorandum of Reprimand, dated 25 April 2000, regarding the Applicant having been apprehended on 1 April 2000 following a verbal and physical altercation with his wife while the Applicant was intoxicated.
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 the Applicants 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. After a thorough review of the Applicants 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: 12 August 2009 Location: Washington, D.C.
Did the Applicant Testify? Yes No
Counsel: NA
Witnesses/Observers: NA
Exhibits Submitted: NA
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the Applicants record of service during the period of enlistment under review and considering the analysts 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 1 No change 4
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: No Change
RE Code:
Grade Restoration: No Yes Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20080017461
______________________________________________________________________________
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