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ARMY | DRB | CY1999 | 1999033951
Original file (1999033951.rtf) Auto-classification: Denied
PART II - APPLICATION DATA

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

1. Character of Discharge: Bad Conduct

2. Date of discharge (or REFRAD): 970425

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:
                            NDSM
a. Period entered for: 3 Years ASR
b. Entry date: 940105
c. Age: 19 Years DOB: 741022
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 108 3. Highest grade achieved:
f. Length of Service: E2
3 Year(s) 2 Month(s) 2 Day(s)

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 0

         Mil conf 950131-950320;

         Civil conf 0

         Other 0


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data:

         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)
                   950301 Willfully disobeyed a lawful command from a superior commissioned officer, two specifications (950131); (950131); Willfully disobeyed a lawful order from a non commissioned officer, two specifications (950131); (950131).
         c. GCM: 
                  Date Offense(s)


8.       Remarks: The applicant has an approved Bar to Reenlistment in file dated (950119)

SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         ARNGUS   921106   921107   NA
         ADT      921108   930306   Uncharacterized
         ARNGUS   930307   940104   Honorable



PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 1 March 1995, the applicant was found guilty by a special court-martial of willfully disobeying a lawful command from a superior commissioned officer, two specifications (950131); (950131), and willfully disobeying a lawful order from a non commissioned officer, two specifications (950131); and (950131). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for sixty days; forfeiture of $569.00 pay per month for four months and reduction to E1. The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. On 9 February 1996, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 21 March 1997, the sentence having been affirmed and Article 71c having been complied with; the bad-conduct discharge was ordered to be executed.

         b. On 25 April 1997, the applicant was discharged. At the time of discharge, the applicant had 3 years, 2 months, and 2 days service on his current enlistment and 50 days of lost time.

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 , with -----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, DC on 15 March 2000

         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 parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above:
(1) The issue is rejected. The Board carefully examined the applicant’s record of service during the period of enlistment under review. The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any issues with your counsel should have been addressed during the court-martial 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 clemency is not warranted.

         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:

 (2) The issue is rejected. The Board congratulates the applicant on his work achievements since departing the Army. However, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.

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       

                                 
MRS. WADE
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: 1999033951 INDEX NUMBERS: A9217
Date of Review: 000315 A0217
Character of Service: BD A9221
Date of Discharge: 970425
Authority: AR 635-200 C3
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.      PO      X          X    





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