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): 901128 3. Authority for separation: a. Regulation: Chapter 3, 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: 4 Years GCMDL (2ndAwd) b. Entry date: 850419 NCOPDR (1) c. Age: 21 Years DOB: 630628 ASR d. Educational level: HS Grad e. Aptitude area score: GT: 109 3. Highest grade achieved: f. Length of Service: E5 5 Year(s) 2 Month(s) 4 Day(s) 4. Performance evaluations: See OMPF PART III - SERVICE HISTORY SECTION A - Period of Service Under Review - Continued 5. Periods of unauthorized absence: Status Inclusive dates AWOL 880927-881203; 881227-890302; Mil conf 890308-890312; 890324-890411; 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) 890324 AWOL (880927-881204; and AWOL, from (881219-890227). c. GCM: Date Offense(s) 8. Remarks: The applicant has an approved Bar to Reenlistment in file, dated (880628). SECTION B - Prior Service Data Other discharge(s): Service From To Type Discharge RA 820701 850418 Honorable PART IV - PREHEARING REVIEW SECTION A-ANALYST’S ASSESSMENT l. Facts and Circumstances: a. Evidence of record shows that on 24 March 1989, the applicant was found guilty by a special court-martial of AWOL, from (880927-881204) and AWOL again on (881219-890227). He was sentenced to be discharged with a Bad Conduct Discharge, confinement for thirty days (30) and reduction to E1. On 10 April 1989, 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 31 May 1989, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence. On 13 October 1989, the sentence having been affirmed pursuant to Article 71 © having been complied with, the sentence was ordered to be executed. b. On 28 November 1990, the applicant was discharged with a bad conduct discharge under the provisions of Chapter 3, AR 635-200 by reason of court-martial. At the time of discharge, the applicant had completed 5 years, 2 months, and 4 days of active military service and accrued 158 days of lost time in the period under review and had a total of 7 years, 11 months, and 23 days of active 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 011202, with (1) Xerox copy of DD Form 293 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 27 February 2002. 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 Army Discharge Review Board 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 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                            MR. RIVERA Case Reviewing Official PART VIII - DIRECTIVE/CERTIFICATION SECTION A - DIRECTIVE NONE SECTION B - CERTIFICATION Approval Authority: GERARD W. SCHWARTZ 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: 2002066947 INDEX NUMBERS: A9105 Date of Review: 020227 A9235 Character of Service: BD A9221 Date of Discharge: 901128 A0100 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