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ARMY | DRB | CY1997 | 199701573
Original file (199701573.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): 940819

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

          b. Reason: For The Good of The Service-In Lieu of Trial by 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: 870728 NDSM
c. Age: 21 Years DOB: 650927 GCMDL
d. Educational level: HS Grad ASR
e. Aptitude area scores:
          GT: 103 3. Highest grade achieved:
f. Actual creditable service: 4 Years
1 Month 15 Days Grade
E4

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 910608-940514
         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:

          910608:  Applicant was reported AWOL from his unit.
         910708:  Applicant was classified as a deserter and dropped from the rolls                 of his unit.
         940515:  Applicant was returned to military control at Fort Dix, NJ.
         940523:  Court-martial charges were preferred against the applicant.
         940523:  Applicant consulted with legal counsel and requested discharge in                 lieu of trial by court-martial.
         940624:  Commander recommended approval with a UOHC discharge.
         940712:  Approving authority approved discharge in lieu of trial and directed              a UOHC discharge.
         940819:  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 970209.
          B-1: DD Form 293, with two enclosures as submitted by the applicant.




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 UOHC discharge be upgraded to an HD or GD.


2. APPLICANT CONTENDS : (1) That his one incident of AWOL should not outweigh his entire record of honorable service; (2) That he did not receive adequate legal counsel and did not know the consequences of a UOHC discharge; (3) That he was under a great deal of stress when he returned from Desert Storm; and,
(4) That he should have received counseling upon his return from Desert Storm.

3. COUNSEL CONTENDS : That the applicant’s service record supports an HD; that his post-service conduct warrants a discharge upgrade.


4. SUMMARY OF SERVICE : The applicant’s military records show:

He enlisted in the Regular Army for 4 years on 28 July 1987. He was trained as an medical clerk and sent to Fort Sill, Oklahoma, for duty. On 11 February 1991, he arrived in Saudi Arabia on temporary duty (TDY) during Operation Desert Storm. He departed Saudi Arabia on 20 May 1991.

When he returned to his unit, he went AWOL on 8 June 1991 and did not return to military control until 15 May 1994, a period of 2 years, 11 months, and 6 days. He was placed in the Personnel Control Facility (PCF) at Fort Dix, New Jersey, and court-martial charges were preferred against him. On 23 May 1994, he consulted with competent legal counsel who explained the charges against him and his options. He was advised that, should he be granted separation in lieu of trial, he might receive a UOHC discharge. He was also advised of the possible effects of such a discharge. The counsel wrote a memorandum to the approving authority asking for a GD for his client.

The applicant requested separation in lieu of trial by court-martial. The approving authority approved the request and directed a UOHC discharge. The applicant was separated on 19 August 1994. He had 4 years, 1 month, and 15 days of creditable service and 2 years, 11 months, and 6 days of lost time due to AWOL.


 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

6. ISSUES OF PROPRIETY : The applicant contends that he did not receive proper legal counsel.


7. ISSUES OF EQUITY : The applicant contends that his overall record did not warrant a UOHC discharge, and that he was stressed from Desert Storm and in need of counseling.


8. POSSIBLE BOARD ISSUES : NONE
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 parenthetical numbers below corresponds to the issue numbers on the DD Form 293, or in Part VI, Paragraph 1, above.
         (2) The issue is rejected. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) 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. In doing so, the applicant admitted guilt to the stipulated offense of AWOL under the UCMJ. 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. 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.
         b. Equity:       The parenthetical numbers below corresponds to the issue numbers on the DD Form 293, or in Part VI, Paragraph 1, above.
         (1,3,4) The issues are rejected. The Board considered the applicant’s quality of service during the enlistment under review and acknowledged his successful transition to civilian life and noted his accomplishments since departing the Army. However, in review of the applicant’s entire service record and his post-service conduct, the Board determined this service was not sufficiently meritorious to warrant an upgrade to the characterization of discharge.
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       

                                 
MR. MCGOWAN
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:

AD97-01573 * * 980211 UOHC 940819 AR635-200 C10 A7100 NC 5-0A
1 10 11 12 18 20 26 41 46 49 52

A0113 A0139 A9217 A9221
53 58 63 68


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 Review Boards Agency Support Division, St. Louis, without action.

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

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    





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