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ARMY | DRB | CY2001 | 2001059584

Original file (2001059584.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): 970324

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:
                           NONE
a. Period entered for: 2 Years
b. Entry date: 950518
c. Age: 40 Years DOB: 540721
d. Educational level: 14 Years
e. Aptitude area score:
         GT: 110 3. Highest grade achieved:
f. Length of Service: E6
1 Year(s) 9 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 951206-951228;

         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)
                  951206 Attempted to escape from the custody of SSG (950827); with intent
                           to deceive, made to SSG a false official statement (950827);
                           physically controlled a vehicle, while drunk (950827); assaulted
                           SSG (950827).

         c. GCM:
                  Date Offense(s)

8.       Remarks: NONE

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         RA       771206   800721   Honorable
         RA       800722   830717   Honorable
         RA       830718   870527   Honorable
         RA       870528   900411   Honorable
         RA       900412   950517   Honorable

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 6 December 1995, the applicant was found guilty by a special court-martial of attempting to escape from the custody of SSG (950827); making a false official statement to a SSG(950827); physically controlling a vehicle, while drunk (950827); and, assaulting a SSG (950827). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for thirty days and reduction to E1. On 22 February 1996, 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 30 May 1996, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 21 February 1997, the sentence having been affirmed pursuant to Article 71 © having been complied with, the sentence was ordered to be executed.

         b. On 24 March 1997, the applicant was discharged. At the time of discharge, the applicant had completed 1 year, 9 months, and 14 days of active military service and accrued 23 days of lost time in the period under review and had a total of 19 years, 2 months, and 26 days of active military 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 010628.
         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 12 September 2001 .

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

Board Issue: (1) 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.

(1) The issue is accepted. The Board carefully reviewed the applicant’s military record 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.

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 4 1

         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. McKim-Spilker
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis Date: 14 September 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.

SECTION B - CERTIFICATION

Approval Authority:

GERARD W. SCHWARTZ
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: 2001059584 INDEX NUMBERS: A9106
Date of Review: 010912 A9218
Character of Service: BD A0100
Date of Discharge: 970324
Authority: AR 635-200 C3
Reason: A6800
Results of Board Action/
Vote/Affirmation: GD 4-1 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 | CY2001 | 2001059584

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