Applicant Name:  ?????

Application Receipt Date: 2010/03/29	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he is requesting an upgrade for the following reasons; he served 9 years without a blemish on his record before the incident that caused him to go through a court-martial, the incident happened at a time when he was going through a bad period in his life, and his progress and accomplishments since his separation shows that his discharge does not explain his character.

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: NA
Discharge Received: 			   Date: 080110   Chapter: 3      AR: 635-200
Reason: Court-Martial	   RE:     SPD: JJD   Unit/Location: Company B, 1/48th Infantry Battalion, 3rd Training Brigade, Fort Leonard Wood, MO 

Time Lost: Military confinement from (060622-061122) for 154 days; as part of his punishment imposed from a Special Court-Martial. 

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

Courts-Martial (Charges/Dates/Punishment): 060622, Special Court-Martial for; on divers occasions between on or about 1 September 2005 and on or about 15 December 2005, and between on or about 3 January 2006, and on or about 30 March 2006, violate a lawful general regulation, by wrongfully engaging in conduct of a sexual nature with trainee, by wrongfully having personal conversations unrelated to the training mission with trainee Private, and by exchanging personal telephone text messages and pictures with trainee Private, on divers occasions between on or about 15 December 2005 and on or about 3 January 2006, violated a lawful general regulation, by wrongfully engaging in conduct of a sexual nature with trainee Private, and by wrongfully transporting trainee Private in his personal automobile, 

On divers occasions between on or about 13 January 2006 and 10 February 2006, violate a lawful general regulation, by wrongfully engaging in conduct of a sexual nature including engaging in sexual intercourse with trainee Private, wrongfully having personal conversations unrelated to the training mission with trainee Private, and by wrongfully writing personal letters to trainee Private.  On or about 13 January 2006, with intent to deceive, signed an official record, to wit: DA Form 2823, which record was false in that he stated he did not give his phone number to any other Soldiers, and was then known by the said SSG to be so false,

On or about 13 February 2006, with intent to deceive, signed an official record, to wit: DA Form 2823, which record was false in that he stated he did not have sex with Private in the barracks and he only had sex with the Private one time, and was then known by the said SSG to be so false; between on or about 13 January 2006 and on or about 26 January 2006, committed sodomy with Private; between on or about 10 February 2006 and on or about 1 March 2006, wrongfully endeavored to influence the testimony of Private as a witness in an investigation by telling her to say that they had not seen each other outside of training, that she had not been in his office alone with him, and that they were just friends, or words to that effect; and on divers occasions between on or about 13 January 2006 and on or about 26 January 2006, as a married man wrongfully had sexual intercourse with Private, a woman not his wife.  He was sentenced to reduction to Private (E-1), confinement for 8 months, and a bad conduct discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  28
Current ENL Date: Reenl/050331    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 9 Mos, 10 Days ?????
Total Service:  		11 Yrs, 0 Mos, 17 Days ?????
Previous Discharges: 	RA 960828-981129/HD
                                       RA 981130-000105/HD
                                       RA 000106-040314/HD
                                       RA 040315-050330/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 21C10 Bridge Crewmember   GT: 104   EDU: HS Grad   Overseas: Korea x 3 (961229-971229), (000516-011018), (040112-050111)   Combat: None
Decorations/Awards: ARCOM (2), AAM (4), GCMDL (3), NDSM, GWTSM, KDSM, NCOPDR (2), ASR, OSR

V.  Post-Discharge Activity
City, State:  ?????
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 22 June 2006, the applicant was found guilty by a special court-martial; in that he did on divers occasions between on or about 1 September 2005 and on or about 15 December 2005, and between on or about 3 January 2006, and on or about 30 March 2006, violate a lawful general regulation, by wrongfully engaging in conduct of a sexual nature with trainee, by wrongfully having personal conversations unrelated to the training mission with trainee Private, and by exchanging personal telephone text messages and pictures with trainee Private, on divers occasions between on or about 15 December 2005 and on or about 3 January 2006, violated a lawful general regulation, by wrongfully engaging in conduct of a sexual nature with trainee Private, and by wrongfully transporting trainee Private in his personal automobile. 
       
       On divers occasions between on or about 13 January 2006 and 10 February 2006, violate a lawful general regulation, by wrongfully engaging in conduct of a sexual nature including engaging in sexual intercourse with trainee Private, wrongfully having personal conversations unrelated to the training mission with trainee Private, and by wrongfully writing personal letters to trainee Private.  On or about 13 January 2006, with intent to deceive, signed an official record, to wit: DA Form 2823, which record was false in that he stated he did not give his phone number to any other Soldiers, and was then known by the said SSG to be so false, 
       
       On or about 13 February 2006, with intent to deceive, signed an official record, to wit: DA Form 2823, which record was false in that he stated he did not have sex with Private in the barracks and he only had sex with Private one time, and was then known by the said SSG to be so false; between on or about 13 January 2006 and on or about 26 January 2006, committed sodomy with Private; between on or about 10 February 2006 and on or about 1 March 2006, wrongfully endeavored to influence the testimony of Private as a witness in an investigation by telling her to say that they had not seen each other outside of training, that she had not been in his office alone with him, and that they were just friends, or words to that effect; and on divers occasions between on or about 13 January 2006 and on or about 26 January 2006, as a married man wrongfully had sexual intercourse with Private, a woman not his wife.  He was sentenced to reduction to Private (E-1), confinement for 8 months, and to be discharged with a bad conduct discharge.  
       
       On 6 November 2006, only so much of the sentence as provides for reduction to the grade of Private (E-1), confinement for five (5) months, and a bad-conduct discharge was approved and, except for the bad-conduct discharge, will be executed.  Effective 6 July 2006, the automatic forfeiture of pay required by Article 5 8b, UCMJ, was deferred for the period of confinement.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review.  On 28 March 2007, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  
       
       On 23 August 2007, 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 issue and documents submitted with the application, the analyst found no mitigating factors that would warrant clemency.  
       
       The analyst noted the applicant's issue that he served nine years without a blemish on his record before the incident and he was going through a bad period in his life.  He further, contends that his progress and accomplishments since his separation shows that his discharge does not explain his character.  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 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 January 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 26 March 2010, xerox copy of his Official Military Personnel File, and Character reference letters with various dates.














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 NA    No change NA
(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





























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 AR20100012318
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