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ARMY | DRB | CY1997 | 199701413
Original file (199701413.rtf) Auto-classification: Denied

                                    CASE NO: AD97-01413
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): 870812

3. Authority for separation:

         a. Regulation: Chapter 3, AR 635-200

         b. Reason:       As a Result of Court-Martial, Other
4. Prior review(s): ( X ) NONE
PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
a. Period entered for: 3 Years Type
b. Entry date: 831011 AAM
c. Age: 23 Years DOB: 600818 ASR
d. Educational level: HS Grad
e. Aptitude area scores:
         GT: 86 3. Highest grade achieved:
f. Actual creditable service: 3 Years
8 Months 13 Days Grade
E4

4. Performance evaluations:
( X ) NONE

                                             CASE NO: AD97-01413
PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL
         Mil conf 860219-860407
         Civil conf
         Other

6. Nonjudicial punishment: ( X ) NONE
7. Court-Martial data:
         a. SCM: ( X ) NONE

         b. SPCM:
                  Date Offense(s)
          860219 Wrongfully distribute 17.59 grams of marijuana on or about                         (850930)

         c. GCM:  ( X ) NONE

8.       Remarks: ( X ) NONE
SECTION B - Other Service Data
( X ) NONE

         CASE NO: AD97-01413
PART IV - PREHEARING REVIEW
SECTION A - Analyst's Assessment

1. Summary of facts and circumstances concerning discharge:
         860219:  Applicant was found guilty by a special court-martial of                                    wrongfully distributing 17.59 grams of marijuana on or about                       (850930). He was sentenced to be discharged with a bad conduct                     discharge, confinement for 2 months; forfeiture of $300.00 pay per                month for two months and reduction to E1.
         860327:  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.
         861030:  The United States Army Court of Military Review affirmed the                       approved findings of guilty and the sentence.
         870724:  The sentence having been affirmed pursuant to Article 66 and Article              71(c) having been complied with, the sentence was ordered to be                            executed.
         870812:  Applicant was discharged.
2. Issue(s) of propriety and/or equity on DD Form 293 or incorporated by reference:
         See Attached DD Form 293.

 3. Exhibit(s) submitted:

         A-1: DD Form 293, dated 970326.
B-1: DD Form 293, with two enclosures as submitted by the applicant.

PART IV - PREHEARING REVIEW
SECTION B - Medical and/or Legal Advisory Opinion
( X ) NONE
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: AD97-01413
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:
         ( )     Additional issue(s) identified during review/hearing as follows:
         

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 corresponds to the issue numbers on the DD Form 293, or in Part VI, Paragraph 1, above.
(1)&(2) The issues are rejected. The record does not support the applicant's contention, and no evidence to support it has been submitted by the applicant, that he did not commit the crime or that he was entrapped by the Army. 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.
 (3) The issue is rejected. Even though a single incident, the Board concluded that the discrediting entry constituted a departure from the standards of conduct expected of soldiers in the Army. The applicable Army Regulation clearly states that there are circumstances " in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization". Having examined all the circumstances, the Board determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, bring discredit on the Army, and was prejudicial to good order and discipline. This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable or general discharge.


3. Response to item(s) not addressed as decisional issue(s): ( X ) NA

                            CASE NO: AD97-01413
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                                  .
         ( )      Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                          .

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: AD97-01413
PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       


                                 
COL MELCHIOR
Post Hearing Reviewer   


PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
(X) NONE
SECTION B - CERTIFICATION


Approval Authority:

WILLIAM E. MATHEWS
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




JIMMY R. WYRICK
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

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

INDEX RECORD:

AD9701413 970911 OT 870812 AR 635-200 C3 A6800 NC 5-0A
1 10 11 12 18 20 26 41 46 49 52

A0113 A9237 A9411 A9235
53 58 63 68

                           CASE NO: AD97-01413
PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1. LTC WYRICK, JIMMY R. Mbr      X          X    

2. LTC SMITH, LILLIAN C. Mbr      X          X    

3. COL MELCHIOR, ROBERT J. Mbr      X          X    

4. COL MILLER, JOEL D. Mbr      X          X    

5. COL ALLEN, THOMAS J. PO      X          X    

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