Applicant Name:  ?????

Application Receipt Date: 2009/06/09	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached 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: 020806
Discharge Received: 			   Date: 050401   Chapter: 3       AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: HHD, 765th Trans Bn, 8th Trans Bde, Fort Eustis, VA 

Time Lost: Confinement by military authorities 48 days (020806-020923), as a result of Special Court-Martial received (020806). 

Article 15s (Charges/Dates/Punishment): 000203, Fraternization with a trainee between (990801 and 990831); and making a false official statement (990824), forfeiture of $500.00 pay per month for two (2) months.

Courts-Martial (Charges/Dates/Punishment): 020806, SPCM, unlawfully pulled the hair of a female Soldier (011218); unlawfully strike a female Soldier on the buttocks (011218); and orally communicated to two female Soldiers certain indecent language.  The punishment consisted of reduction to E1; forfeiture of $737.00 pay per month for two months; confinement for 60 days; and to be discharged from the service with a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: 990312    Current ENL Term: Indefinite Years  ?????
Current ENL Service: 	05 Yrs, 11Mos, 01Days Includes 921 days of excess leave (020924-050401)
Total Service:  		16 Yrs, 10Mos, 12Days ?????
Previous Discharges: 	RA-910829-940214/HD
                                       RA-940215-950214/HD
                                       RA-950915-990311/HD
Highest Grade: E6		Performance Ratings Available: Yes    No 
MOS: 74C1H/Record Telecommunication Operator Maintainer   GT: 121   EDU: HS Grad   Overseas: Southwest Asia, Haiti   Combat: Kuwait x 2 (900814-910408 and 960827-970822)
Decorations/Awards: MSM, ARCOM-4, AAM-3, AGCM-4, KDSM, NDSM-2, AFEM-2, SWASM (w/2 BS), AFSM, NCOPDM, ASR, OSR-3, KLM-SA, KLM-KU, CIB

V.  Post-Discharge Activity
City, State:  Conway, SC
Post Service Accomplishments: The applicant states, since he has been out the Armed Forces, he has strived to excell by starting two businesses of his own, while working for UPS as a part-time supervisor.




VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 6 August 2002, the applicant was found guilty by a special court-martial of unlawfully pulling the hair of a female Soldier (011218); unlawfully striking a female Soldier on the buttocks (011218); and orally communicating to two female Soldiers certain indecent language.  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 60 days, forfeiture of $737.00 pay per month for two months, and reduction to the grade of E1.  
       
       On 29 April 2003, the sentence was approved and except for the part of the sentence extending to a Bad-Conduct Discharge was ordered to be executed.  The adjudged forfeiture of $737.00 pay per month for two months for two months was deferred on 7 August 2002 and terminated 29 April 2003.  The automatic forfeiture of two-thirds pay as required by Article 58(b), UCMJ, was waived on 7 August 2002 for a period of sixty (60) days.  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.  On 11 February 2005, the portion of the sentence pertaining to confinement had been served.  Article 71(c) having been complied with, the bad-conduct discharge was ordered to be executed.
       
       The applicant's record contains a General Officer's Memorandum of Reprimand dated 30 August 2000, for being apprehended by authorities in Richmond County, GA, for operating a motor vehicle while his blood-alcohol content was .11 percentage.

       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 enlistement under review, the documents, and the issues the applicant submitted, 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. 
       
       The analyst noted the applicant's issue regarding his 16 years of service and and his post service accomplishments outlined with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  
       
       Furthermore, eligibility for veteran's benefits to include 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.  
       
       Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
       
       After a thorough review of the applicant’s available record and the issue 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: 20 April 2010         Location: Atlanta, GA

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: [redacted] 

Exhibits Submitted: DD Form 214; Special Court-Martial Order; and DA Form 2-1.  On the day of the applicant's hearing he submitted 4 additional letters of support.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, and hearing his testimony, and considering the analyst’s recommendation and rationale, the Board determined that clemency is warranted based on the applicant's overall length and quality of service to include his combat service.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  A change in the reason for discharge is not authorized under Federal statute.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 3    No change 2
Reason -     Change 0    No change 0
(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 AR20090010550
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