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ARMY | DRB | CY2003 | 2003087818
Original file (2003087818.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): 940120

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:
                            ARCOM
a. Period entered for: 4 Years 15 Weeks NDSM
b. Entry date: 891121 SWASM/2BSS
c. Age: 20 Years DOB: 690808 ASR
d. Educational level: HS Grad OSR
e. Aptitude area score:
          GT: 86 3. Highest grade achieved:
f. Length of Service: E4
3 Year(s) 11 Month(s) 17 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

         Mil conf 920708-920920;

         Civil conf

         Other


6. Nonjudicial punishment:

         Date     Offense(s)
         ________________
         911118   Letter of Reprimand for driving under the influence of alcohol
                           on 911027.
7. Court-Martial data:

         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)
                   920708   Willful disobedience of a lawful command (920326); driving
                                    under the influence of alcohol (920326); and transporting a
                                    loaded firearm in a motor vehicle (920326).

         c. GCM: 
                  Date Offense(s)


8.       Remarks: On 3 April 1992 the applicant was barred from reenlistment.
SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         USAR     891023   891120   NA



PART IV - PREHEARING REVIEW

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

          a. Evidence of record shows that on 8 July 1992, the applicant was found guilty by a special court-martial of willful disobedience of a lawful command (920326); driving under the influence of alcohol (920326); and transporting a loaded firearm in a motor vehicle (920326). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for 3 months, forfeiture of $523.00 pay per month for 3 months, and reduction to E1. On 11 September 1992, the sentence was approved and except for the portion providing for a bad conduct discharge the sentence was ordered to be executed. The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. On 29 December 1993, the sentence having been affirmed and Article 71© having been complied with, the sentence of a bad conduct discharge was ordered to be executed.

         b. On 20 January 1994, the applicant was discharged. At the time of discharge, the applicant had completed 3 years, 11 months, and 17 days of active military service and accrued 75 days of lost time in the period 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 030327.
         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 1 October 2003 .

         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: (2) Clemency is warranted.

         b. Request: ( X ) Recharacterization ( X ) 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. This 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 found that clemency was warranted based on the overall length and quality of his service and combat service. 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. 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 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       

                                 
MR. RIVERA
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 3 October 2003

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 entail a restoration of grade.
SECTION B - CERTIFICATION

Approval Authority:


SPURGEON A. MOORE
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




JOHN F. LONG
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: 2003087818 INDEX NUMBERS: A9106
Date of Review: 031001 A9218
Character of Service: BD A9445
Date of Discharge: 940120 A0113
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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