Application Receipt Date: 20061108	

Prior Review    Prior Review Date: None

I.  Applicant Request
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?  
Yes    No        Tender Offer:        

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: NIF
Discharge Received:     Date: 990818   
Chapter: 3    AR: 635-200
Reason: Court-Martial Other
RE:     SPD: JJD
Unit/Location: D Co, 2nd Bn, 63rd AR, APO, AE 

Time Lost: 44 days due to confinement by Special Court Martial (970828-971012). 

Article 15s (Charges/Dates/Punishment): NIF

Court-Martials (Charges/Dates/Punishment): 970828, SPCM, for writing bad checks to the AAFES X 14 in the amount of $4098.63, (961224), (961229), (961229), (961231), (970101), (970102), (970105), (970107), (970108), (970112), (970113), (970115), 970121) and (970208).  BCD, confinement for 2 months, reduction to E-1.  

Counseling Records Available: Yes    No 

IV.  Soldier's Overall Record
DOB:  771125  
Current ENL Date: 960730    Current ENL Term: 3 Years       
Current ENL Service: 02 Yrs, 11Mos, 03Days Includes 636 days of excess leave (971121-990818)
Total Service:  02 Yrs, 11Mos, 03Days      
Previous Discharges: None
Highest Grade: E-2
Performance Ratings Available: Yes    No 
MOS: 19K10 M1 Armor Crewman   GT: NIF   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: ASR
V.  Post-Discharge Activity
Home of Record:
Current Address:
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 28 August 1997, the applicant was found guilty by a special court-martial of writing bad checks (14) to AAFES in the amount of approximately $4098.63, on or between (961224 thru 970208).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for two months, and reduction to E1.  On 20 November 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 5 March 1999, DA, HQ USA Armor Center, Fort Knox, KY, Special Court Martial Orders 38, indicated that the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 5 March 1999, the sentence having been affirmed pursuant to Article 71c having been complied with, the sentence was ordered to be executed.  The applicant was discharged from the Army with a Bad Conduct Discharge on 18 August 1999.

      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 several 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 clearly shows 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.   While the applicant's misconduct is not condoned, the analyst noted that the overall length of service and time elasped, mitigated the discrediting entries in his service record.  After a thorough review of the applicant's record and the issue he submitted, the analyst now believes  clemency is warranted and therefore recommends to the Board that it grant clemency in the form of an upgrade of  the applicant's characterization of service to general, under honorable conditions.  
      
VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 071213              
Location: Washington DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 5    No change 0   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the analyst's recommendation and rationale, the Board determined that the characterization of service was too harsh, and clemency is warranted based on time elapsed since his discharge  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.

Case report reviewed and verified by: Earl Silver, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: NA
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON			DATE: 071215
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060015827

Applicant Name:        
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