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ARMY | DRB | CY1997 | 199701529
Original file (199701529.rtf) Auto-classification: Denied
                                    CASE NO: AD97-01529
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): 850722

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
5. Action requested: ( X ) Recharacterization ( ) Change of Reason


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: 821013    ASR
c. Age: 18 Years DOB: 640808
d. Educational level: 11 Years
e. Aptitude area scores: ( X ) NIF/NA
          GT: 115 3. Highest grade achieved:
f. Actual creditable service: 2 Years
9 Months 10 Days Grade
E4

4. Performance evaluations:
( X ) NONE

                                             CASE NO: AD97-01529
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: ( X ) NONE
8.       Remarks: ( X ) NONE
SECTION B - Other Service Data
( X ) NONE

         CASE NO: AD97-01529
PART IV - PREHEARING REVIEW
SECTION A - Facts and Issues

1. Summary of facts and circumstances concerning discharge:
         850520:  Medical examination cleared applicant for separation.
         850530:  Applicant was charged with stealing the property of SP4, of a total               value of $2933.00 (850514); unlawfully entering a dwelling room with              intent to commit larceny (850514).
         850605:  Applicant consulted legal counsel, requested discharge under the                  provisions of Chapter 10, AR 635-200, for the good of the Service                 and did not submit a statement in his own behalf.
         850703:  Separation authority approved separation with an under other than                 honorable conditions discharge.
         859722:  Applicant was discharged.
2. Issue(s) of propriety and/or equity on DD Form 293 or incorporated by reference:
          (1) “Confession made under threat of court martial, and promise of Discharge     without consequences. My confession was made under the promise of       no retrobution and no restitution. And the threat of a Court Martial    and/or jail if I chose to stay in the service and fight the charges.    Although there was no evidence or witness’ against me.”

         (2) “No physical evidence of me in connection of crime. Several years ago I      applied for the position of Deputy Sheriff of Cook County. I past all   the job requirements but still did not get the job. I feel very                  strongly that my discharge affected my chances.”

         (3) “I feel that my advancement or actually being considered for a career        oriented job will be hindered by my discharge. I’be been working for    several Security Co’s over the years I’m currently working for Securit          Professinals Inc. .... .. ...... .... ........ (...) ...-.... My                Permanate Employee Registration Card # is ......”

         (4) “I have no record of any prosucution (mis. or felony) I’ve been employed     for security companys for the past 12 yrs. My P.E.R.C Card # is ......

 3. Exhibit(s) submitted:

         A-1: DD Form 293, dated 970401.

PART IV - PREHEARING REVIEW
SECTION B - Medical and/or Legal Advisory Opinion
( X ) NONE
PART V - SUMMARY OF HEARING
SECTION A-Attendees and exhibits

1. Review/Hearing information:

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

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

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

                                    CASE NO: AD97-01529
PART V HEARING SUMMARY
SECTION B-Case Analyst’s Summary

1. APPLICANT REQUESTS : That his discharge under other than honorable conditions be recharacterized to honorable or in the alternative to general.

2. APPLICANT CONTENDS : That his confession to military criminal investigators was made under the threat of court-martial and made with the promise of discharge without consequences. He also contends that there is no physical evidence connecting him to the crime and that his advancement and possibility of a career are hindered by the character of his discharge. He specifically states he applied for the position of Deputy Sheriff of Cooke County, Illinois, and met l the requirements, but was not selected he believes due to his discharge. Finally he states that since his discharge he has no record of any prosecutions and that he has been employed by security companies for the last 12 years.

3. COUNSEL CONTENDS : The applicant is not currently represented by counsel.


4. SUMMARY OF SERVICE :

Records show that the applicant completed three years of high and then enlisted for four years for training of choice as a tactical circuit controller. He successfully completed basic and advanced individual training and was assigned to a communications unit. He was advanced to specialist four.

On 30 May 1985 court-martial charges were preferred against the applicant for larceny and unlawful entry. He consulted with counsel and voluntarily submitted a request for discharge for the good of the service in lieu of court-martial. In making this request, the applicant acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Administration if a discharge under other than honorable conditions were issued. He also elected not to make any statement in his own behalf.

On 3 July 1985 the separation authority approved the applicant’s voluntary request for discharge and directed a discharge under other than honorable conditions. The applicant was discharged on 22 July 1985 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial. He had 2 years, 9 months and 10 days of creditable service.

5. LEGAL/REGULATORY BASIS FOR SEPARATION :
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
6. ISSUES OF PROPRIETY : The applicant submits no issues of propriety.

7. ISSUES OF EQUITY : The applicant submits three issues of equity.

The applicant’s first issue of equity is that his confession was made under the promise of no retribution and no restitution, but with the threat of court-martial and/or jail if he chose to stay in the service and fight the charges.

The applicant’s second issue of equity is that there was no physical evidence connecting him with the crime or witnesses against him.

                                                                                                   AD97-01529

The applicant’s third issue of equity is that he believes his advancement and opportunity for a career are being hindered by his discharge.

The applicant’s fourth issue of equity is that his post service conduct has been free from prosecution and that he has been employed by security companies for the past 12 years.

8.

POSSIBLE BOARD ISSUES : None.

                                    CASE NO: AD97-01529
PART VI - ISSUES AND FINDINGS

1. 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:
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) and (2). The issues are rejected. The evidence of record shows that the applicant was charged with the commission of an offense 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 larceny and housebreaking. 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 this 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) and (4). The issues are rejected. The Army Discharge Review Board can understand the applicant's situation and congratulates the applicant on his work achievements since departing the Army. However, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
3. Response to item(s) not addressed as decisional issue(s): ( X ) NA

                            CASE NO: AD97-01529
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: ( X ) NA

                                     CASE NO: AD97-01529
PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified.      

__________________________________       
MR SHAW
Case Analyst and Reviewing Officer      

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
(X) NONE
SECTION B - CERTIFICATION


Approval Authority:

WILLIAM E. MATHEWS
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




JIMMY R. WYRICK
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

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

INDEX RECORD:

AD9701529 971008 UD 850722 AR635-200 C10 A7000 NC 5-0 A
1 10 11 12 18 20 26 41 46 49 52

A0113 A9221 A9411
 53 58 63
REMARKS
Case Management Data

( ) Notify inquiries clerk. Response to other correspondence required upon completion of case.

( ) Escalated mode of hearing. Applicant is entitled to another review only if he/she/authorized representative appears before a hearing panel. If there is no response to notification letter or applicant/representative fails to appear for the hearing, the case will be returned to the Army Reserve Personnel Center (ARPERCEN) without action.

( ) DD Form 149 in file. Send case to ABCMR.

                           CASE NO: AD97-01529
PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1. LTC WYRICK, JIMMY Mbr      X          X    

2. LTC SMITH, LILLIAN Mbr      X          X    

3. COL JACKSON, MICHAEL Mbr      X          X    

4. COL MELCHIOR, ROBERT Mbr      X          X    

5. COL ALLEN, THOMAS PO      X          X    





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