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):  940217

3.  Authority for separation:

	a.  Regulation:  Chapter 3, AR 635-200

	b.  Reason:  As a Result of 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:
			                          ASR                       
a.  Period entered for: 4 Years                C/Ach(1)
b.  Entry date: 890705                         L/C       
c.  Age: 19 Years   DOB: 700423                                                 
d.  Educational level:  HS Grad                                                 
e.  Aptitude area score:
	    GT: 104                                3.  Highest grade achieved:
    f.  Length of Service:                         E4
         4 Year(s)  7 Month(s)  12 Day(s)                                  
                                                           
                                               4.  Performance evaluations:  
                                                   NONE

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

5.  Periods of unauthorized absence:  
                                                                    
    Status       Inclusive dates                       
	AWOL         0                                                      

	Mil conf     920605-920827;                                                      

	Civil conf   0                                                      

	Other        0                                                      

6.  Nonjudicial punishment:  NONE

	Date 	Offense(s)

7.  Court-Martial data:  

	a.  SCM:  
		Date   Offense(s)

	b.  SPCM:  
		Date   Offense(s)
		920605 Failure to repair, 4 specifications; on (920329); (920330); (920406) and (920407); disobeyed a lawful command between (27 March and 7 April 1992); disobeyed a lawful order on (920327) and disrespect toward a superior NCO on (9204060.  

	c.  GCM:	 
		Date   Offense(s)

8.	Remarks:  The enlistment date on the DD Form 214, item 12a is incorrect; the separation authority and the narrative reason appear to be incorrect also.

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 5 June 1992, the applicant was found guilty by a special court-martial of four specifications of failing to repair on (920329), (920330), (920406), and (920407); disobeying a lawful command between (27 March and 7 April 1992); disobeying a lawful order on (920327) and disrespect toward a NCO on (920406).  He was sentenced to be discharged with a Bad Conduct Discharge, confinement for three months; forfeiture of $520.00 pay per month for four months and reduction to the grade of E1.  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.  On 17 December 1993, the sentence having been affirmed pursuant to Article 71 © having been complied with, the sentence was ordered to be executed.   

	b.  On 17 February 1994, the applicant was discharged under the provisions of Chapter 3, AR 635-200, as a result of court-martial, other with a bad conduct discharge.  At the time of discharge, the applicant had 4 years, 7 months, and 
12 days, service on his current enlistment under review and 84 days lost time.  

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 000418, with twelve (12) enclosure(s).
	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 17 January 2001.

	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:  (4)  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.

        (4)  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 infractions of discipline, the extent thereof, and the seriousness of the offenses.  The Board determined that the preponderance of the applicant’s service was served honorably.  Accordingly, the Board found that clemency was warranted and 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), (2), and (3)  The issues are rejected.  The evidence of record shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence.  The Board determined that the applicant's misconduct diminished the quality of his service below that meriting a fully honorable characterization of service.

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                      .

	(   )	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       5         0   

	  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
                  1941 Jefferson Davis Highway, 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

TO: ARBA Support Division-St Louis      Date:  19 January 2001        

     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:  The applicant’s record requires the following administrative
          correction to his DD Form 214:  correct block 25 to reflect
          “AR 635-200, Chapter 3”.  

SECTION B - CERTIFICATION

Approval Authority:

WILSON A. SHATZER
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:

EARNEST C. SMITH, JR.    
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:  2000049602                    INDEX NUMBERS:  A9106
Date of Review:  010117                                   A9218
Character of Service:  BD                                 A0100
Date of Discharge:  940217                                
Authority:  AR 635-200 C3                         
Reason:  A6800                                            
Results of Board Action/                                  
Vote/Affirmation:  GD 5-0 A                               

PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC  UNCHAR

    1. COL MOORE, SPURGEON A.	Mbr          X            X            

    2. 	Mbr          X            X            

    3. 	Mbr          X            X            

    4. 	Mbr          X            X            

    5. 	PO           X            X