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ARMY | DRB | CY1997 | 199701572
Original file (199701572.rtf) Auto-classification: Denied

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): 870317

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: 3 Years Type
b. Entry date: 841001                               ASR
c. Age: 26 Years DOB: 580105 L/C
d. Educational level: GED
e. Aptitude area scores: ( X ) NIF/NA
          GT: 118 3. Highest grade achieved:
f. Actual creditable service: 1 Year
3 Months 3 Days Grade
E2

4. Performance evaluations:
( X ) NONE


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

5. Periods of unauthorized absence:

 Status Inclusive dates
         AWOL 850430-850430; 850605-860817
         Mil conf
         Civil conf
         Other

6. Nonjudicial punishment: ( X ) NONE
7. Court-Martial data: ( X ) NONE
8.       Remarks: ( X ) NONE
SECTION B - Other Service Data
( X ) NONE


PART IV - PREHEARING REVIEW
SECTION A - Facts and Issues

1. Summary of facts and circumstances concerning discharge:
         860827:  Applicant was charged with AWOL (850605-860818).
         860827:  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.
         870113:  Unit commander recommended approval with an under other than                       honorable conditions discharge.
         870115:  Intermediate commander recommended approval with an under other than              honorable conditions discharge.
         870122:  Staff Judge Advocate concurred.
         870123:  Senior intermediate commander recommended approval with an under                  other than honorable conditions discharge.
         870126:  Separation authority approved separation with an under other than                 honorable conditions discharge.
         870317:  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 970305.
          B-1: DD Form 293, with three (3) enclosure(s) as submitted by the applicant.
C-1: DD Form 149, dated 970305.




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
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. In support of his application, he submits a Letter of Commendation, employment verification and driver’s record.

2. APPLICANT CONTENDS : That during his separation process the officer in charge was unaware that he had been selected Honor Graduate of his A.I.T. school. The officer in charge told him that he would have “put” him in for a different discharge had he known. The applicant contends that his discharge was based solely on excess leave during a time when he was trying to take care of his family. While he was stationed at the discharge center, he repaired several pieces of inoperative equipment and fully cooperated with the discharge process. While he was AWOL, he maintained full time employment and was a law-abiding citizen.

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

4. SUMMARY OF SERVICE : Records show that the applicant obtained a general education development high school equivalency prior to joining the Army in October 1984. He completed basic and advanced individual training and served as an air defense artillery Chaparral crewmember.

On 5 June 1985, the applicant commenced a period of unauthorized absence (439 days) which was terminated by apprehension on 18 August 1986. On 22 August 1986, in a sworn statement, the applicant stated that he suffered severe depression while in the military. His depression carried over to his wife, who would spend days in bed crying. He stated that he and his wife no longer have these problems, and he declined psychiatric treatment.

On 27 August 1986 charges were preferred against the applicant for unauthorized absence. Trial by special court-martial empowered to adjudge a bad conduct discharge was recommended. He consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.

The applicant acknowledged that he made this request for discharge of his own free will, and the intermediate commanders recommended that the applicant receive a discharge under other than honorable conditions. On 26 January 1987 the separation authority approved the request for discharge and directed the issuance of a discharge under other than honorable conditions. The applicant was separated on 17 March 1987 with 1 year, 3 months and 2 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 :

There were no issues of propriety presented by the applicant.





7. ISSUES OF EQUITY :

The first issue of equity presented by the applicant is that at the time of his discharge, the officer in charge was not aware of his selection as Honor Graduate of A.I.T. class in 1985. The applicant claims the officer in charge told him he would have “put” him in for a different discharge if his Letter of Commendation (selection for Honor Graduate of his A.I.T. class in 1985) had been in his file.

In support of his application, the applicant submitted the Letter of Commendation dated 31 January 1985, informing him of his selection as the Honor Graduate of his class while undergoing One Station Unit Training.

The second issue of equity presented by the applicant is that his discharge is based solely on excess leave during a time when he was taking care of his family. While he was AWOL, he maintained full time employment and was a law-abiding citizen

The applicant submitted verification of his employment status and driver’s record.
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 offense of unauthorized absence. 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. Response to item(s) not addressed as decisional issue(s): ( X ) NA
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
PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

___________________________________     
MRS. WALLER
Case Analyst and Reviewing Official
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:

AD9701572 971029 UD 870317 AR635-200 C10 A7100 NC 5-0 A 1 10 11 12 18 20 26 41 46 49 52

A9205 A9215 A9221
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 ARBA Support Division, St. Louis without action.

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


PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1. LTC WYRICK, JIMMY R. Mbr      X          X    

2. COL ALLEN, THOMAS J. Mbr      X          X    

3. COL MELCHIOR, ROBERT J. Mbr      X          X    

4. COL MILLER, JOEL D. Mbr      X          X    

5. COL MATHEWS, WILLIAM E. PO      X          X    






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