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ARMY | DRB | CY1999 | 1999024863
Original file (1999024863.rtf) Auto-classification: Denied
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: BCD

2. Date of discharge (or REFRAD): 970423

3. Authority for separation:

         a. Regulation: Chapter 3, AR 635-200

          b. Reason: Court-Martial, Other
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            ARCOM(3)
a. Period entered for: NIF AAM(3)
b. Entry date: 931129 GCMDL(3)
c. Age: 28 Years DOB: 651004
d. Educational level: HS Grad
e. Aptitude area score:
          GT: NIF 3. Highest grade achieved:
f. Length of Service: E6
2 Years 11 Months 2 Days

4. Performance evaluations:
NONE

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data:

         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)
                   NIF      Violation of Article 112a X 2

         c. GCM: 
                  Date Offense(s)


8.       Remarks: The applicant was charged and pleaded guilty of two violations of Article 112a, marijuana, (951128)
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         RA 831229 861001 HD
         RA 861002 900405 HD
         RA 900406 911006 HD
         RA 911007 931128 HD



PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

         a. The evidence of record, a 4 March 1996 memorandum for commander, that the applicant was charged and pleaded guilty to two violations of Article 112a of the UCMJ. The applicant mailed approximately 30 grams of marijuana from Germany to his home in Washington D.C. The marijuana was seized and delivered to the applicant in the context of a control buy. He was apprehended in Washington D.C. and shortly thereafter reported to Fort Bragg, N.C. for duty. The record also contains a DD Form 214 (Certificate of Release from Active Duty) issued the applicant which documents the following information pertaining to his discharge: Character of Service-Bad Conduct; Authority for Separation-Chapter 3, AR 635-200; and Narrative Reason for Separation-Court-Martial.

         b. The DD Form 214 also certifies that the applicant was discharged with a BCD on 23 April 1997. At the time of discharge the applicant had completed
2 years, 11 months, and 2 days of his current enlistment and a total of 12 years and 10 months of active military service.

         c. The available records show that the applicant completed over 12 years of service; attained the rank of staff sergeant/E-6; served almost 7 and ½ years of overseas service; served in Southwest Asia during Operation Desert Storm; and earned 3 Army Commendation Medals, 3 Army Achievement Medals, 3 Good Conduct Medals, the Southwest Asia Service Medal/with 3 bronze service stars, the Kuwait Liberation Medal, and two Overseas Service Ribbons. There is no information on the applicant’s disciplinary history contained in the available records.

2. Legal/Regulatory Basis for Separation Action : 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.
SECTION B-APPLICANT’S SUBMISSIONS


 1. Issue(s) of propriety and/or equity submitted by applicant or counsel.
As stated on applicant’s DD Form 293.
2. Exhibit(s) submitted:

         A-1: DD Form 293, dated 970909, with five (5) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE

PART IV - PREHEARING REVIEW (CONTINUED)



SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor ( ) Legal Advisor



 a. Medical prehearing comments (if applicable):

b. Legal prehearing comments (if applicable):
PART V - SUMMARY OF HEARING

SECTION A-Attendees and exhibits

1. Review/hearing information:

         a. Type requested:
         ( X ) Records review ( ) Hearing

         b. Type Held:
         ( X )Records review ( ) Hearing
         ( ) Tender Offer

         c. Review/hearing location and date: Washington D.C. on 5 May 1999 .

         d. Appearance by:
         Applicant ( ) Yes ( X ) No
          Counsel ( ) Yes ( X ) No
         e. Applicant testified: ( ) Yes ( X ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing:

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 of this case report and directive.
         ( )     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 number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

 (1), (2), (3), and (4) The issues are rejected. The Board noted the applicant’s contentions that, in effect, he made one mistake in his 11 and ½ years of service; that he served in combat; that he received awards for his combat service; and that his involvement with drugs was based on marital problems; in addition, the Board noted the contention of counsel that, in effect, the applicant’s post service conduct warranted clemency. However, the evidence of record clearly shows that the applicant was adjudged guilty by 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 ADRB is empowered to change 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 record and any issues submitted, the Board found no cause for clemency and therefore voted to deny relief.

3. Response(s) to item(s) not addressed as decisional issue(s): NONE

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: Promulgation Team
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508



3. Minority views: NONE

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

                                 
MR ADRIANCE
Case Reviewing Official 


PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
SECTION B - CERTIFICATION

Approval Authority:


THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




SUZANNE WALKER
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

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

INDEX RECORD:

 AR Number: 1999024863 INDEX NUMBERS: A9217
Date of Review: 980505 A9201
Character of Service: BC A9221
Date of Discharge: 970423 A9307
Authority: AR 635-200 C3 A0100
Reason: A6800
Results of Board Action/
Vote/Affirmation: NC 5-0 A













PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR
1.      Mbr      X          X    
2.      Mbr      X          X    
3.      Mbr      X          X    
4.      Mbr      X          X    
5.      Mbr      X          X    

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