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ARMY | DRB | CY2000 | 2000047762
Original file (2000047762.rtf) Auto-classification: Approved
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): 860506

3. Authority for separation:

         a. Regulation: Chapter 3, AR 635-200 Section IV

          b. Reason: As a Result of Court-Martial, Other
4. Prior review(s): Records/000509


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            GCMDL
a. Period entered for: 3 Years NDSM
b. Entry date: 831018 ASR
c. Age: 28 Years DOB: 550721 OSR
d. Educational level: GED
e. Aptitude area score:
          GT: 119 3. Highest grade achieved:
f. Length of Service: E5
2 Year(s) 2 Month(s) 6 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 840820-840821; 840905-840906; 840919-841010; 841126-841126; 850113-850113; 850125-850331;

         Mil conf 850509-850616;

         Civil conf 0

         Other 0


6. Nonjudicial punishment:

         Date     Offense(s)
         841023   AWOL (840820-840822); AWOL (840905-840907)
         841116   AWOL (840919-841011);

7. Court-Martial data:

         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)
                   850509 AWOL (850125-850401);
         c. GCM: 
                  Date Offense(s)


8.       Remarks: NONE
SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         RA       731031   760802   Honorable
         RA       760803   800521   Honorable
         RA       800522   830520   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 9 May 1985, the applicant was found guilty by a special court-martial of AWOL from (850125 to 850401). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 120 days, and forfeiture of $413.00 pay per month for six months. On 12 June 1985, 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. On 10 January 1986, The United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 30 April 1986, the DA, HQ; US Army Armor Center and Fort Knox, Orders 83-31 discharged the applicant from the Regular Army.

         b. On 6 May 1986, the applicant was discharged under the provisions of Chapter 3, AR 635-200 Section IV, as a result of court-martial, other, with a bad conduct discharge. At the time of discharge, the applicant had 2 years,
2 months, and 6 days service on his current enlistment and 133 days lost time, and 11 years, 6 months, and 28 days, total time in service.

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 000821, with twenty-six (26) 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 6 November 2000 .

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
         Counsel ( X ) Yes ( ) No
         e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( X ) Yes ( ) No
        
         g. Witness(es) testified: ( X ) Yes ( ) No
        
2. Exhibit(s) submitted at hearing: DD Form 293 and one (1) letter of reference

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: (2) 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 1, above:

 (2) The issue is accepted. 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. The Army Discharge Review Board is empowered to change the characterization of 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. 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) See Paragraph 3, below.

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

 Inasmuch as the Board voted to grant the full relief, response to the remaining issue is neither required nor rendered.

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 3 2

         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       

                                 
MS. WADE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 10 November 2000

 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 .
 ( X )   Other (see remarks below).
Remarks: This action does not include a restoration of grade.
SECTION B - CERTIFICATION
Approval Authority:


WILSON A. SHATZER
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




EARNEST C. SMITH, JR.
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: 2000047762 INDEX NUMBERS: A9106
Date of Review: 001106 A9406
Character of Service: BD A0100
Date of Discharge: 860506 A9411
Authority: AR 635-200 C3
Reason: A6800
Results of Board Action/
Vote/Affirmation: GD 3-2 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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