CASE NO:  AD97-00208

PART II - APPLICATION DATA
(Note: Part I deleted under the Privacy Act on Reading Room copy)

1.  Type of discharge (or characterization of service):  BCD
 
2.  Date of discharge (or REFRAD):  960307

3.  Authority for separation:

	a.  Regulation:  Chapter 3, AR 635-200

	b.  Reason:	Court-Martial, Other
                           
4.  Prior review(s):  ( X ) NONE

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

1.	Service data:                              2.  Awards and decorations:
                                                                                                      
a.  Period entered for:  6 Years               Type
b.  Entry date:  910523                        AAM (3)
c.  Age:  23 Years   DOB:  680413              GCMDL                       
d.  Educational level:  HS Grad                NDSM                        
e.  Aptitude area scores:  ( X ) NIF/NA
	    GT:  105                               3.  Highest grade achieved:
    f.  Actual creditable service:  4 Years            
        9 Months  15 Days                          Grade    
                                                   E5        

                                               4.  Performance evaluations:  
                                                   ( X ) NONE

					CASE NO:  AD97-00208

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

5.  Periods of unauthorized absence:  ( X ) NONE

6.  Nonjudicial punishment:  

	Nature                 Date
	Letter of Reprimand    920305

7.  Court-Martial data:  

    SPCM for Failure to obey a lawful order three (3) specifications; adultery; 
    wrongful obstruction of justice; disobeying a commissioned officer.
	
8.	Remarks:  Applicant sentenced to confinement for ninety (90) days, however
              documentation of confinement time in not in file. 

SECTION B - Other Service Data

1.  Other discharge(s):                  

	Service          Type           
    RA               HD

            

	CASE NO:  AD97-00208

PART IV - PREHEARING REVIEW
SECTION A - Analyst's Assessment

1.  Summary of facts and circumstances concerning discharge:

    950510:  Applicant was found guilty by a special court-martial of failure to 
             obey a lawful order three (3) specifications, adultery, wrongful 
             obstruction of justice, and disobeying a commissioned officer.  He was 
             sentenced to confinement for ninety (90) days, reduction to the grade
             of Private (E1) and a bad conduct discharge.         
    950727:  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.
    951031:  The United States Army Court of Military Review affirmed the approved 
             findings of guilty and the sentence.
    960307:  The sentence having been affirmed pursuant to Article 71 (c) having 
             been complied with, the sentence was ordered to be executed.
    960307:  Applicant was discharged.	

2.  Issue(s) of propriety and/or equity on DD Form 293 or incorporated by reference:

    See attached DD Form 293.

3.  Exhibit(s) submitted:

	A-1:  DD Form 293, dated 970210
    B-1:  DD Form 293, with one (1) enclosure as submitted by the applicant.

PART IV - PREHEARING REVIEW
SECTION B - Medical and/or Legal Advisory Opinion

	Title 10, United States Code, Section 1553 has been amended to restrict the Board’s review of court-martial convictions.  The Board no longer has the power to review a conviction to determine if the accused was properly convicted.  Under the amendment, the conviction stands; the Board may only change the discharge awarded if it feels clemency is in order.

PART V - SUMMARY OF REVIEW HEARING

	a.  Applicant testified:    (   ) Yes   ( X ) No

	b.  Witness(es) testified:  (   ) Yes   ( X ) No

2.  Exhibit(s) submitted at hearing:  ( X ) NONE

				CASE NO:  AD97-00208

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, Paragraph 2.
	    (   )	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 numbers below corresponds to the issue numbers on the DD Form 293, or in Part VI, Paragraph 1, above.

       (1)  The issue is rejected.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  The Army Discharge Review Board  cannot retry the case.  The Army Discharge Review Board is empowered only to change the discharge if it determines that clemency is in order.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of punishment.  After a thorough review of the applicant's record and any issues submitted, the Board found no cause for clemency and voted to deny relief.

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

			CASE NO:  AD97-00208

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:  CPCD
                  1941 Jefferson Davis Highway, 2nd Floor
                  Arlington, VA  22202-4508

3.  Minority views:  ( X ) NA

				CASE NO:  AD97-00208

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified	

                          	
LTC SMITH
Post Hearing Reviewer	

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

(X) NONE

SECTION B - CERTIFICATION

Approval Authority:

EL CARTIO BARNES
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:

SHERRY HILL SARGENT
Major, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge                   C - Other
B - Material submitted by applicant                  	

INDEX RECORD: 

AD9700208         970328    BD    960307    AR635-200 C3      A6800    NC 5-0 A
1          10 11 12        18    20        26                41       46 49  52

                  A9217   A0100   A9447                            
                 53      58      63                                  

			CASE NO:  AD97-00208

PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC  UNCHAR

    1.  MAJ WYRICK, JIMMY              Mbr          X                 X      

    2.  LTC PHILLIPS, JOHN             Mbr          X                 X      

    3.  LTC SMITH, LILLIAN             Mbr          X                 X      

    4.  LTC WHISKER, JILL              Mbr          X                 X      

    5.  COL MELCHIOR, ROBERT           PO           X                 X