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):  901211

3.  Authority for separation:

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

      b.  Reason:  As a Result of Court-Martial

4.  Prior review(s):  NONE



                         PART III - SERVICE HISTORY

                 SECTION A - Period of Service Under Review

1.    Service data:                              2.  Awards and
    decorations:
                                           AAM
    a.  Period entered for:  3 Years               ASR
    b.  Entry date:  850604                        OSR
    c.  Age:  18 Years   DOB:  661106


    d.  Educational level:  HS Grad


    e.  Aptitude area score:
          GT:  109                               3.  Highest grade
achieved:
    f.  Length of Service*:                         E4
          5 Year(s)  3 Month(s)  27 Day(s)


                                               4.  Performance evaluations:

                                                   NONE

*Applicant held beyond ETS (in excess leave status) for the convenience of
the government pending affirmation of Special Court-Martial.

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

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL

      Mil conf     880610-880818


      Civil conf

      Other


6.  Nonjudicial punishment:

      Date  Offense(s)
      880323     Treat with contempt CW2 and SSG by not addressing them
                 with their proper titles, by arguing and talking back,
                 by not assuming the position of attention when told to
                 do so, and by eyeball-rolling, face-making, and swinging
                 around while being counseled (880314) (Field Grade)

7.  Court-Martial data:

      a.  SCM:
            Date   Offense(s)


      b.  SPCM:
            Date   Offense(s)
            880610 Receiving stolen property; failure to repair

      c.  GCM:
            Date   Offense(s)


8.    Remarks:  NONE


                       SECTION B - Prior Service Data
                                    NONE

Other discharge(s):

      Service    From  To    Type Discharge





                         PART IV - PREHEARING REVIEW

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

      a.  Evidence of record shows that on 10 June 1988, the applicant was
found guilty by a Special Court-Martial of receiving stolen property and
failing to repair.  He was sentenced to a forfeiture of $447 pay per month
for three months, confinement for three months, and to be discharged with a
Bad Conduct Discharge.  The applicant was in military confinement from 10
June – 19 August 1988.  On 22 August 1988, the applicant was placed on
involuntary excess leave pending the affirmation and execution of the Bad
Conduct Discharge.  On 15 May 1989, the portion of the sentence pertaining
to the Bad Conduct Discharge was affirmed by the Court of Military Review
pursuant to Article 71c, and was ordered executed.

      b.  On 11 December 1990, the applicant was discharged.  At the time
of discharge, the applicant had completed 5 years, 3 months, and 27 days of
active military service (to include 477 days excess leave) and accrued 71
days of lost time due to military confinement 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 030911.
      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 27 October
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     (   ) 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 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 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:  2004105382                    INDEX NUMBERS:  A9105
Date of Review:  041027                                   A0113
Character of Service:  BD
Date of Discharge:  901211
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