Applicant Name:  ?????

Application Receipt Date: 2009/06/01	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting documents 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: 	   Date: Not In File (NIF)
Discharge Received: 			   Date: 010523   Chapter: 3    AR: 635-200
Reason: Court Martial, Other	   RE:     SPD: JJD   Unit/Location: D Co, 2-2 IN Bn, Vilseck, GE 

Time Lost: DD Form 214 indicates two period of lost time for a total of 90 days which appear to be as a result of his Court martial.  The first period of lost time was for 63 days (961122-970123), and the second period was for 27 days (970124-970219).

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

Courts-Martial (Charges/Dates/Punishment): 970124, assault and resisting arrest (960916), wrongfully having sex with a woman not his wife on divers occasions (960511-960914), conduct prejudicial to good order and discipline (960916), confinement for three months, forfeiture of $600 for three months, reduction to E-1 and a Bad Conduct Discharge (SPCM) 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 920323    Current ENL Term: 4 Years  Extended for 18 months
Current ENL Service: 	09 Yrs, 02Mos, 00Days Includes 1,430 days of excess leave.
Total Service:  		15 Yrs, 07Mos, 04Days ?????
Previous Discharges: 	RA 880623-920322/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 11M10/FV Infantryman   GT: 104   EDU: GED   Overseas: Germany   Combat: None in file, however, the record reflects the applicant eaned a CIB at some point in his career.
Decorations/Awards: ARCOM, AAM-5, AGCM, NDSM, ASR, CIB

V.  Post-Discharge Activity
City, State:  Cedar Rapids, IA
Post Service Accomplishments: None listed.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 24 January 1997, the applicant was found guilty by a special court-martial of assault and resisting arrest (960916), on divers occasions having sex with a woman not his wife (960515-960914), and conduct prejudicial to good order and discipline (960916).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 3 months, forfeiture of $600 for 3 months, and reduction to E-1.  On 13 April 1997, 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 19 October 2000, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  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.  
       
       Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Further, eligibility for veteran's benefits to include medical and educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       The applicant contends that he was young and arrogant; however the record shows he was a non-commissioned officer who was 24 years old at the time.  There is no evidence that the applicant was any less mature than other NCOs and Soldiers of the same age who successfully completed military service.
       
       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 recommends to the Board to deny clemency. 
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
        

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 19 March 2010         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 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090010109
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