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ARMY | DRB | CY1997 | 199700645
Original file (199700645.rtf) Auto-classification: Approved
                                    CASE NO: AD97-00645
PART II - APPLICATION DATA
(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Type of discharge (or characterization of service): BCD

2. Date of discharge (or REFRAD): 950227

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

         b. Reason:       In Lieu Of Trial By Court-Martial
4. Prior review(s): ( X ) NONE
PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
 ( X ) NONE

a. Period entered for: 3 Years
b. Entry date: 920818
c. Age: 31 Years DOB: 600525
d. Educational level: HS Grad
e. Aptitude area scores: ( X ) NIF/NA
          GT: 115 3. Highest grade achieved:
f. Actual creditable service: 2 Years
4 Months 10 Days Grade
E5

4. Performance evaluations:
( X ) NONE

                                             CASE NO: AD97-00645
PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence:

 Status Inclusive dates
         AWOL
         Mil conf 910402-910601
         Civil conf
         Other

6. Nonjudicial punishment: ( X ) NONE

7. Court-Martial data:
         
         SPCM - 910402 For fail to obey a lawful general regulation, and commit an
         assault.
8.       Remarks: ( X ) NONE
SECTION B - Other Service Data

 1. Other discharge(s):

         Service Type
         RA                HD
          RA                HD
         RA                HD





         CASE NO: AD97-00645
PART IV - PREHEARING REVIEW
SECTION A - Analyst's Assessment

1. Summary of facts and circumstances concerning discharge:
         910402: Applicant was found guilty by a special court-martial of fail to obey
         a lawful general regulation, and commit an assault upon another by
         cutting him on the throat and chest with dangerous weapons. He was
         sentenced to be discharged with a Bad Conduct Discharge, confinement
         at hard labor for two months; forfeiture of $502.00 pay per month for
         two months.
         911108: 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.
         921221: The United States Army Court of Military Review dismissed Charge II              and its specification and reaffirmed the the remaining findings. It              also approved only so much of the sentence as provided for a bad-               conduct discharge.
         950120: The sentence having been affirmed pursuant to Article 66 and Article
         71(c) having been complied with, the sentence was ordered to be
         executed.
         950227: Applicant was discharged.
2. Issue(s) of propriety and/or equity on DD Form 293 or incorporated by reference:

         ( X ) NONE

 3. Exhibit(s) submitted:

         A-1: DD Form 293, dated 970122.



PART IV - PREHEARING REVIEW
SECTION B - Medical and/or Legal Advisory Opinion

         Title 10, United States Code, Section 1553 has been amended to restrict the Board’s review of court-martial convictions. The Board no longer has the power to review a conviction to determine if the accused was properly convicted. Under the amendment, the conviction stands; the Board may only change the discharge awarded if it feels clemency is in order.


PART V - SUMMARY OF REVIEW HEARING


         a. Applicant testified: ( ) Yes ( X ) No

        
         b. Witness(es) testified: ( ) Yes ( X ) No
        

2. Exhibit(s) submitted at hearing: ( X ) NONE

                                    CASE NO: AD97-00645
PART VI - ISSUES AND FINDINGS

1. a. Applicant's issue(s) of propriety and/or equity:
          ( X )   Same as those listed on DD Form 293 and Part IV, Section A, Paragraph 2.
         ( )     Revised issue(s) furnished in writing by applicant as follows:
         ( X )   Additional issue(s) identified during review/hearing as follows:
         Board issue. Issue 1. The reason for discharge was improperly changed.
         
b. Request: ( X ) Recharacterization ( ) Change of Reason


2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:

          a. Propriety:    The applicant has not submitted an issue of propriety and the ADRB has not otherwise relied upon an issue of propriety to change the discharge.
         b. Equity:       The parenthetical numbers below correspond to the issue numbers on                         the DD Form 293, or in Part VI, Paragraph 1, above.

         (1) The issue is accepted. The records reflect that while the applicant was separated as a result of court-martial, the reason and authority for discharge on his DD Form 214 were improperly changed by an authority involved in the discharge process. Therefore, the Board voted to change the authority for discharge to Chapter 3 and the reason for discharge to as a result of court-martial.

3. Response to item(s) not addressed as decisional issue(s): Although the applicant did not submit any issues via his DD Form 293, the Board did review his entire military record. Court-Martial convictions stand as adjudged or modified by appeal through the judicial process. The Army Discharge Review Board cannot retry the case. The Army Discharge Review Board is empowered only to change the discharge if it determines that clemency is in order. Clemency is an act of mercy, or instance of leniency, to moderate the severity of punishment. After a thorough review of the applicant's record and any issues submitted, the Board found no cause for clemency and voted to deny relief.

                            CASE NO: AD97-00645
PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.       Board conclusion(s):

         The discharge was:

          ( X )    Proper.
         ( )      Improper as to characterization. Change characterization to                                      .
         ( )      Improper as to reason. Change reason to                         under                       .
         ( X )    Equitable.
         ( )      Inequitable as to characterization. Change characterization to                                .
         ( )      Inequitable as to reason. Change reason to                        
                  under                                  .
         ( X )    Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to    Chapter 3       under   AR 635-200    .

2. Voting record: Change No Change
         Reason 0 5
Characterization 0 5

         The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below. The request must contain the CASE NO. located in the upper right corner of this document.

Department of the Army Review Boards Agency
ATTN: CPCD
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508



3. Minority views: ( X ) NA

                                     CASE NO: AD97-00645
PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       


                                 
LTC WHISKER
Post Hearing Reviewer   


PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: Commander, ARPERCEN           Date:

          The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I directs that:

                   ( ) Characterization of discharge be changed to Uncharacterized.
                  ( ) Characterization of discharge be changed to Honorable.
                  ( ) Characterization of discharge be changed to Under Honorable
Conditions.
                  ( ) Reason and authority for discharge be changed to
                  .
                  ( X ) Other (see remarks below).
Remarks: ADRB directs Commander ARPERCEN to correct block 25 to read “AR 635-200, Chapter 3 and block 28 to read “as a result of court-martial”.




SECTION B - CERTIFICATION


Approval Authority:

EL CARTIO BARNES
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




SHERRY HILL SARGENT
Major, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge           C - Other
B - Material submitted by applicant     

INDEX RECORD:

AD9700645 970409 BCD 950227 AR 635-200 C10 A6800 MD 5-0 A
1 10 11 12 18 20 26 41 46 49 52

A0114 A0156 A9500
53 58 63

                           CASE NO: AD97-00645

PART IX - VOTING RECORD

 Name Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1. MAJ WYRICK, JIMMY Mbr      X          X    

2. LTC PHILLIPS, JOHN Mbr      X          X    

3. LTC SMITH, LILLIAN Mbr      X          X    

4. LTC WHISKER, JILL Mbr      X          X    

5. COL ALLEN, THOMAS PO      X          X    




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