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ARMY | DRB | CY2000 | 2000048085
Original file (2000048085.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): 990407
3. Authority for separation:
         a. Regulation: Chapter 3, AR 635-200

          b. Reason: As a Result of Court-Martial
4. Prior review(s): Records/000719


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            ARCOM(2)
a. Period entered for: 3
b. Entry date: 961112
c. Age: 32 Years DOB: 640131
d. Educational level: 15 Years
e. Aptitude area score:
          GT: 124 3. Highest grade achieved:
f. Length of Service: E6
2 Year(s) 2 Month(s) 14 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 0

         Mil conf 980526-980806

         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)
                   980526 Wrongfully used cocaine between (971208 and 971215);
                  wrongfully asked an NCO to submit a urine sample for someone
                  other than himself (971215); and wrongfully asked an NCO not to
                  report the accused attempt to submit an adulterated urine
sample (971215)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: The applicant has an approved Bar to Reenlistment in file, dated (980202)


SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         USAR 830106 840109 NIF
         IRR 840110 860518 NIF
         ARNGUS 860519 860814 HD
         USAR 870225 870416 NIF
         RA 870417 891213 HD
         RA 891214 940803 HD
         RA 940804 961111 HD



PART IV - PREHEARING REVIEW

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

          a. The evidence of record shows that on 26 May 1998, the applicant was found guilty by a special court-martial of wrongfully using cocaine, wrongfully asking an NCO to submit a urine sample for someone other than himself; and wrongfully asking an NCO not to report his attempt to submit an adulterated urine sample. He was sentenced to be discharged with a bad conduct discharge, confinement for three (3) months, and reduction to private/E1. On 30 July 1998, the sentence was approved. On 24 November 1998, the United States Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. On 12 March 1999, the sentence having been affirmed and Article 71(c) having been complied with, the sentence was ordered to be executed.

         b. On 7 April 1999, the applicant was discharged. He was credited with
2 years, 2 months, and 14 days active service on the enlistment under review and
11 years, 9 months, and 8 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 000813, with fifty-four (54) 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: Atlanta, GA on 27 February 2001 .

         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: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: Applicant submitted two (2) additional
documents.

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 sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The 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. After thoroughly reviewing of the applicant’s record, issue submitted, and post service accomplishments, the Board found that clemency was warranted. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the applicant’s characterization of service to general, under honorable conditions. The applicant’s misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge. A change in the reason for discharge is not authorized under Federal statute.
(1) The issue is rejected. See response to issue (2) 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 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       

                                 
MR. RIVERA
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 9 March 2001

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: 2000048085 INDEX NUMBERS: A9106
 Date of Review: 010227 A9222
Character of Service: BD A9217
Date of Discharge: 990407 A9201
Authority: AR 635-200 C3 A0100
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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