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ARMY | DRB | CY1999 | 99031752

Original file (99031752.rtf) Auto-classification: Approved

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): 890915

3. Authority for separation:

         a. Regulation: Chapter 3, AR 635-200

         b. Reason: As a Result of Court-Martial

4. Prior review(s): Records/950210

PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

1.       Service data: 2. Awards and decorations:
                           AAM
a. Period entered for: 4 Years GCMDL
b. Entry date: 870709 OSR
c. Age: 23 Years DOB: 640117
d. Educational level: GED
e. Aptitude area score:
         GT: 104 3. Highest grade achieved:
f. Length of Service: E5
1 Year(s) 11 Month(s) 8 Day(s)

4. Performance evaluations:
See OMPF

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

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL

         Mil conf 881209-890307

         Civil conf

         Other

6. Nonjudicial punishment: NONE

         Date     Offense(s)


7. Court-Martial data:

         a. SCM:
                  Date Offense(s)


         b. SPCM:
                  Date Offense(s)
                  881209 Absent from place of duty (881130); DOLC from CPT (881130); DOLC
                  from 2LT (831130); DOLO, two specifications (881130); (881201);
                  willfully destroy military property, of a value of $400.00
                  (881201); wrongfully communicate a threat to CPT (881201)

         c. GCM:
                  Date Offense(s)

8.       Remarks: NONE

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         RA 810306 840405 HD
         USARCG 840406 841001 NA
         RA 841002 870708 HD

PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 9 December 1988, the applicant was found guilty by a special court-martial of being absent from his place of duty (881130); two specifications of disobeying a lawful command (881130); two specifications of disobeying a lawful order (881130 881201); willfully destroying military property valued at $400.00 (881201); and wrongfully communicating a threat to a captain (881201). He was sentenced to be discharged with a bad conduct discharge, confinement for four (4) months, a forfeiture of $441.00 pay per month for four (4) months and a reduction to private/E-1. On 3 March 1989 the sentence was approved. The Record of Trial was forwarded to the Judge Advocate General of the Army for review. The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 6 September 1989, the sentence having been affirmed pursuant to Article 66 and Article 71(c) having been complied with, the sentence was ordered to be executed.

         b. On 15 September 1989, the applicant was discharged with a bad conduct discharge, under the provisions of Chapter 3, AR 635-200, by reason of as a result of court-martial. He was credited with 1 year, 11 months, and 8 days active service on the enlistment under review.

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 990926, with one (1) 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:
         ( ) Records review ( X ) Hearing

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

         c. Review/hearing location and date: Washington, DC on 15 November 1999

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
         Counsel ( ) Yes ( X ) No

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

         f. Counsel presentation: ( ) Yes ( X ) No

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

2. Exhibit(s) submitted at hearing: Two (2) new issues

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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (4) Clemency is warranted.

         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 l, above:

(4) The issue is accepted. 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 Army Discharge Review Board 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. The Board carefully reviewed the applicant’s military record and post service accomplishments and found that clemency was warranted. However, the Board determined that the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable characterization of service. 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.

(1), (2), and (3) The issues are rejected. See response to issue (4) above.

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                       .

         ( )      Equitable.
         ( X )    Inequitable as to characterization. Change characterization to General, Under Honorable Conditions .
         ( )      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 5 0

         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

TO: ARBA Support Division-St Louis Date: 17 November 1999

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 the ARBA Support Division-St Louis issue a new DD Form 2l4 to the applicant which reflects the following directed change(s):

( X )   Change characterization of discharge to General, Under
         Honorable Conditions .

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: 1999031752 INDEX NUMBERS: A9106
Date of Review: 991115 A0100
Character of Service: BD A9217
Date of Discharge: 890915 A9221
Authority: AR 635-200 C3
Reason: A6800
Results of Board Action/
Vote/Affirmation: GD 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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ARMY | DRB | CY1999 | 99031752

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