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):  040416

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:
                                           GCMDL
    a.  Period entered for:  6 Years               ASR
    b.  Entry date:  991020                        OSR
    c.  Age:  25 Years   DOB:  740412
    d.  Educational level:  HS Grad
    e.  Aptitude area score:
          GT:  100                               3.  Highest grade
achieved:
    f.  Length of Service:                         E5
          4 Years  5 Months  27 Days

                                               4.  Performance evaluations:

                                                   NIF

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

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL         010905-020105

      Mil conf     020304-020609

      Civil conf

      Other


6.  Nonjudicial punishment:  NONE

      Date  Offense(s)



7.  Court-Martial data:

      a.  SCM:
            Date       Offense(s)


      b.  SPCM:
            Date       Offense(s)
            020402     Without authority, failed to go at the time
prescribed to his
                  appointed place of duty, three specifications (010601-PT
                  formation, 010601-work call formation, and 010820-PT
                  formation); AWOL (010905-020105)


      c.  GCM:
            Date       Offense(s)


8.    Remarks:  Locally imposed Bar to Reenlistment initiated on 010814 and

              approved on 010821.  The basis for the action were his
repeated
              offenses in failure to maintain financial responsibilities,
to
              include family support and not being at his appointed place
of
              duty.  The applicant acknowledged receipt of the approved Bar
on
              010822 and elected not to submit an appeal.


                       SECTION B - Prior Service Data

Other discharge(s):

      Service    From  To    Type Discharge
      ARNGUS     930519      931110     NA
      ADT   930804     931110     Uncharacterized
      ARNGUS     931111      940606     NA
      RA    940607     961015     Honorable
      RA    961016     991019     Honorable


                         PART IV - PREHEARING REVIEW

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

      a.  Evidence of record shows that on 2 April 2002, the applicant was
found guilty by a Special Court-Martial of without authority, failing to go
at the time prescribed to his appointed place of duty, three specifications
(1 June 2001 x’s 2 and 20 August 2001) and AWOL (5 September 2001 – 5
January 2002).  He was sentenced to reduction to the lowest enlisted grade,
forfeiture of $737.00 per month for four months, confinement for 120 days,
and to be discharged with a bad conduct discharge.  The applicant was in
pre/post military confinement from 4 March - 10 June 2002.  On 11 June
2002, the applicant was placed on involuntary excess leave pending the
affirmation and execution of the bad conduct discharge.  On 20 August 2003,
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 16 April 2004, the applicant was discharged.  At the time of
discharge, the applicant had completed 4 years, 5 months, and 26 days of
active military service (to include 676 days excess leave) and accrued 219
days of lost time (i.e., AWOL for 121 days and military confinement for 98
days) in the period under review.  He had a total of 10 years, 3 months,
and 18 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 040402, with no enclosures.
      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 December
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:
          ( X )  Additional issue(s) identified during review/hearing as
              follows:

        Board Issue:  (3)  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.

        (3)  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.  The Army
Discharge Review 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 of service 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.

        (1) and (2)  See Paragraph 3, below.

3.  Response(s) to item(s) not addressed as decisional issue(s):

    Inasmuch as the Board voted to grant the full relief requested,
response to the remaining issues is neither required nor rendered.

                           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
                  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

                          
MR. RIVERA
Case Reviewing Official

                     PART VIII - DIRECTIVE/CERTIFICATION
                            SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis      Date:  3 December 2004

     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:


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:  2004106715                    INDEX NUMBERS:  A9106
Date of Review:  041201                                   A9235
Character of Service:  BD                                 A0113
Date of Discharge:  040416
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