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ARMY | DRB | CY1997 | 199701434
Original file (199701434.rtf) Auto-classification: Denied

                                    CASE NO: AD97-01434
PART II - APPLICATION DATA
(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Type of discharge (or characterization of service): UOHC

2. Date of discharge (or REFRAD): 880325

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

         b. Reason:       For the Good of the Service - In Lieu of 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:

a. Period entered for: 4 Years Type
b. Entry date: 841127 AAM
c. Age: 19 Years DOB: 650324 ASR
d. Educational level: HS Grad
e. Aptitude area scores: ( X ) NIF/NA
          GT: 114 3. Highest grade achieved:
f. Actual creditable service: 3 Years
3 Months 29 Days Grade
E4

4. Performance evaluations:
( X ) NONE

                                             CASE NO: AD97-01434
PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence: ( X ) NONE


6. Nonjudicial punishment: ( X ) NONE
        
7. Court-Martial data:
         a. SCM: ( X ) NONE
                  Date Offense(s)

        
         b. SPCM: ( X ) NONE
                  Date Offense(s)

         c. GCM:  ( X ) NONE
                  Date Offense(s)


8.       Remarks: ( X ) NONE
SECTION B - Other Service Data
( X ) NONE

         CASE NO: AD97-01434
PART IV - PREHEARING REVIEW
SECTION A - Analyst's Assessment

1. Summary of facts and circumstances concerning discharge:
         870813:  Physical examination cleared applicant for separation.
         880108:  Applicant was charged with conspire with SGT’s, SPC’s PV2’s, to                            commit an offense under the Uniform Code of Military Justice, to                  wit: willfully and wrongfully damage the personally owned motor                            vehicles of Corp. and SSG, of a value of more than $100.00 (871030).
         880114:  Applicant was charged with wrongfully use cocaine between (871204-                880104).
         880216:  Applicant consulted legal counsel, requested discharged under the                 provisions of Chapter 10, AR 635-200, for the good of the service -               in lieu of court-martial, and submitted a statement in his own                     behalf.
         880315:  Unit commander recommended approval with an under other than                       honorable conditions discharge.
         880315:  Intermediate commander recommended approval with an under other than              honorable conditions discharge.
         880315:  Senior intermediate commander recommended approval with an under                  other than honorable conditions discharge.
         880315:  Separation authority approved separation with an under other than                 honorable conditions discharge. The court-martial charges are                      withdrawn effective on the separation date of the soldier.
         880325:  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 960510.






PART IV - PREHEARING REVIEW
SECTION B - Medical and/or Legal Advisory Opinion
( X ) NONE
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: AD97-01434
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 ( ) 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. The record does not support the applicant's contention, and no evidence to support it has been submitted by the applicant, that the applicant was not involved in any of the events that took place in his hearing. There was no regulatory requirement for a hearing in the applicant’s type of discharge, and there was no record of a hearing in the applicant’s records. The only event that may have appeared as a hearing to the applicant was an Article 32 investigation where the applicant did provide sworn testimony. The report of this investigation indicated the applicant did not wish to refute anything in his sworn statement. The evidence of record shows the applicant was charged with the commission of offenses punishable under the Uniform Code Of Military Justice with a punitive discharge. The Board noted that after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. By doing so, the applicant admitted guilt to the offenses of conspiring to commit damage private property and wrongful use of cocaine. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Finally, the Board considered the applicant's entire record of service for the period under review. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.
3. Response to item(s) not addressed as decisional issue(s): ( X ) NA

                            CASE NO: AD97-01434
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: AD97-01434
PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       


                                 
LTC PHILLIPS
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:

AD9701434 970618 UD 880325 AR 635-200 C10 A7400 NC 5-0 A
1 10 11 12 18 20 26 41 46 49 52

A9408 A0100 A9237
53 58 63

                            CASE NO: AD97-01434

PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1. LTC WYRICK, JIMMY R. Mbr      X          X    

2. LTC PHILLIPS, JOHN S. Mbr      X          X    

3. LTC SMITH, LILLIAN C. Mbr      X          X    

4. COL ALLEN, THOMAS J. Mbr      X          X    

5. COL MELCHIOR, ROBERT J. PO      X          X    






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