CASE NO:  AD97-00645

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):  950227                                     

3.  Authority for separation:

	a.  Regulation:  Chapter 10, AR 635-200                                   

	b.  Reason:	In Lieu Of Trial By Court-Martial
                           
4.  Prior review(s):  ( X ) NONE

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

1.	Service data:                              2.  Awards and decorations:
                                                   ( X ) NONE

a.  Period entered for:  3 Years                  
b.  Entry date:  920818                        
c.  Age:  31 Years   DOB:  600525                                          
d.  Educational level:  HS Grad                                            
e.  Aptitude area scores:  ( X ) NIF/NA
	    GT:  115                               3.  Highest grade achieved:
    f.  Actual creditable service:  2  Years            
        4  Months  10 Days                         Grade    
                                                   E5        

                                               4.  Performance evaluations:  
                                                   ( X ) NONE

					CASE NO:  AD97-00645

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

5.  Periods of unauthorized absence:
                                                                    
    Status       Inclusive dates                       
	AWOL
	Mil conf      910402-910601                                        
	Civil conf                                                        
	Other                                                             

6.  Nonjudicial punishment:  ( X ) NONE

7.  Court-Martial data:
	
	SPCM - 910402 For fail to obey a lawful general regulation, and commit an
	       assault.

8.	Remarks:  ( X ) NONE

SECTION B - Other Service Data

1.  Other discharge(s):                  

	Service       Type           
	RA		HD
	RA		HD
	RA		HD

            

	CASE NO:  AD97-00645

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

1.  Summary of facts and circumstances concerning discharge:

	910402:  Applicant was found guilty by a special court-martial of fail to obey
	         a lawful general regulation, and commit an assault upon another by
	         cutting him on the throat and chest with dangerous weapons.  He was
	         sentenced to be discharged with a Bad Conduct Discharge, confinement
	         at hard labor for two months; forfeiture of $502.00 pay per month for
	         two months.
	911108:  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.
	921221:  The United States Army Court of Military Review dismissed Charge II   	 	         and its specification and reaffirmed the the remaining findings.  It 		         also approved only so much of the sentence as provided for a bad- 	 	         conduct discharge.
	950120:  The sentence having been affirmed pursuant to Article 66 and Article
	         71(c) having been complied with, the sentence was ordered to be
	         executed.
	950227:  Applicant was discharged.

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

	( X ) NONE

3.  Exhibit(s) submitted:

	A-1:  DD Form 293, dated 970122.

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:  AD97-00645

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

	Board issue.  Issue 1.  The reason for discharge was improperly changed.
	      
    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 numbers below correspond to the issue numbers on  			the DD Form 293, or in Part VI, Paragraph 1, above.

	(1)  The issue is accepted.  The records reflect that while the applicant was separated as a result of court-martial, the reason and authority for discharge on his DD Form 214 were improperly changed by an authority involved in the discharge process.  Therefore, the Board voted to change the authority for discharge to Chapter 3 and the reason for discharge to as a result of court-martial.    

3.  Response to item(s) not addressed as decisional issue(s):  Although the applicant did not submit any issues via his DD Form 293, the Board did review his entire military record.  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.

			CASE NO:  AD97-00645

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                                 .
	( X )	Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to    Chapter 3       under   AR 635-200   .

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:  AD97-00645

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified	

                          	
LTC WHISKER                                                                              
Post Hearing Reviewer	

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO:  Commander, ARPERCEN		       Date:

	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:

		(   )  Characterization of discharge be changed to Uncharacterized.
		(   )  Characterization of discharge be changed to Honorable.
		(   )  Characterization of discharge be changed to Under Honorable 
                   Conditions.
		(   )  Reason and authority for discharge be changed to 
		                                .
		( X )  Other (see remarks below).

Remarks:  ADRB directs Commander ARPERCEN to correct block 25 to read “AR 635-200, Chapter 3 and block 28 to read “as a result of court-martial”.

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: 

AD9700645         970409    BCD   950227    AR 635-200  C10   A6800    MD 5-0 A
1          10 11 12        18    20        26                41       46 49  52

                  A0114   A0156   A9500                              
                 53      58      63                                  

			CASE NO:  AD97-00645

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 ALLEN, THOMAS              PO           X                 X