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):  020927

3.  Authority for separation:

      a.  Regulation:  Chapter 3, Section IV, 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:
                                           AAM (4)          ASR
    a.  Period entered for:  4 Years               GCMDL (2)        MFOM
    b.  Entry date:  960710                        NDSM             KLM (SA)
    c.  Age:  29 Years   DOB:  661005              SWASM w/2BSS     KLM (K)
    d.  Educational level:  2 Yrs Coll             NCOPDR
    e.  Aptitude area score:
          GT:  98                                3.  Highest grade
achieved:
    f.  Length of Service:                         E5
          6 Years  2 Months  18 Days

                                               4.  Performance evaluations:

                                                   See OMPF (fiche)

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

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL

      Mil conf     000309-000511

      Civil conf

      Other


6.  Nonjudicial punishment:  NONE

      Date  Offense(s)



7.  Court-Martial data:  NONE

      a.  SCM:
            Date       Offense(s)


      b.  SPCM:
            Date       Offense(s)
            000309     Dereliction in the performance of his duties by
willfully
                  failing to go to work (between 980101 and 990720)

      c.  GCM:
            Date       Offense(s)


8.    Remarks:  NONE


                       SECTION B - Prior Service Data

Other discharge(s):

      Service    From  To    Type Discharge
      RA    870326     891029     Honorable
      RA    891030     970609     Honorable




                         PART IV - PREHEARING REVIEW

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

      a.  Evidence of record shows that on 9 March 2000, the applicant was
found guilty by a Special Court-Martial of Violation of Article 92, UCMJ,
dereliction in the performance of his duties by willfully failing to go to
work between January 1998 and 20 July 1999.  He was sentenced to discharge
with a Bad Conduct Discharge, reduction to Private E1, forfeiture of
$500.00 pay per month for three (3) months, and confinement for three
months (in accordance with pre-trial agreement).  Only so much of the
sentence pertaining to reduction to Private E1, forfeiture of $500 pay per
month for three months, and 57 days of confinement was approved and ordered
executed.  On 9 March 2000, the applicant was placed in military
confinement.  On 11 May 2000, the applicant completed his sentence to
confinement.  On 12 May 2000, the applicant was placed on excess leave
pending the affirmation and execution of the Bad Conduct Discharge.  The
record of trial was forwarded to The Judge Advocate General of The Army,
for review by the United States Army Court of Criminal Appeals.  On 27 June
2002, the portion of the sentence pertaining to the Bad Conduct Discharge
was affirmed by the United States Army Court of Criminal Appeals pursuant
to Article 71(c), and was ordered executed.

      b.  On 27 September 2002, the applicant was discharged.  At the time
of discharge, the applicant had completed 6 years, 2 months, and 18 days of
active military service (which includes 869 days of excess leave) and
accrued 64 days of lost time in the period under review.  He had a total of
15 years, 3 months, and 28 days of total 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 040106, with one (1) enclosure.
      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 15 September
2004.

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

      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.

        (1)  The issue is rejected.  The Board carefully examined the
applicant’s record of service during the period of enlistment under review.
 There was a full consideration of all faithful and honorable service as
well as the infraction of discipline, the extent thereof, and the
seriousness of the offense.  The evidence of record clearly shows that the
applicant was adjudged guilty by court-martial of dereliction of duty for
willfully failing to go to work 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 ADRB 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 a thorough review of the
applicant’s record and any issues submitted, the Board found no cause for
clemency and therefore voted to deny relief.

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                      .

      ( X ) Equitable.
      (   ) Inequitable as to characterization.  Change characterization to
                                         .
      (   ) 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       0         5

        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
                  1901 South Bell Street, 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

                                    NONE

                          SECTION B - CERTIFICATION

Approval Authority:


ROBERT L. HOUSE
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:




MARY E. SHAW
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:  2004102414                    INDEX NUMBERS:  A9105
Date of Review:  040915                                   A0100
Character of Service:  BD
Date of Discharge:  020927
Authority:  AR 635-200 C3
Reason:  A6800
Results of Board Action/
Vote/Affirmation:  NC 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