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ARMY | DRB | CY1998 | 1998012381
Original file (1998012381.rtf) Auto-classification: Approved
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: UOHC

2. Date of discharge (or REFRAD): 940615

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

          b. Reason: In Lieu of Trial by 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:
                            NONE
a. Period entered for: 4 Years
b. Entry date: 930910
c. Age: 23 Years DOB: 690912
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 105 3. Highest grade achieved:
f. Length of Service: E5
0 Years 9 Months 6 Days

4. Performance evaluations:
NONE

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

5. Periods of unauthorized absence: NONE

 Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: NONE
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         RA 880804 910505 HD
         RA 910506 930909 HD



PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

         a. The evidence of record shows that on 4 April 1994, the applicant was charged with wrongfully transporting a weapon, a Lorcin .380 caliber pistol, in his vehicle (940327); fail to obey a lawful general regulation (940327); unlawfully carry on or about his person a concealed weapon (940327). On
6 May 1994, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter l0, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. Further, the applicant stated that he understood that he could receive an under other than honorable conditions (UOHC) discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant submitted a statement on his own behalf. The unit commander and intermediate commander recommended approval of a general under honorable conditions discharge (GD). On 31 May 1994, the separation authority approved the discharge with a UOHC discharge. The applicant was to be reduced to the lowest enlisted rank.

         b. On 15 June 1994, the applicant was separated with a UOHC discharge. At the time of discharge, the applicant had completed 9 months and 6 days of his current enlistment, and a total of 5 years, 10 months, and 12 days of active military service.

         c. The record shows that the applicant completed almost 6 years of service; attained the rank of sergeant/E-5; and earned the Good Conduct Medal and the Overseas Service Ribbon for completing a tour in Korea. Court-martial charges were preferred against the applicant for two specifications of violation of Article 92 of the UCMJ for violating a lawful general regulation by wrongfully transporting a weapon and for failing to obey a general regulation by failing to register his privately owned weapon; and for violation of Article 134 by carrying on his person a concealed weapon. The applicant elected to request an administrative discharge for the good of the service in order to avoid a trial by court-martial and the punitive discharge which may have resulted. His unit commander and intermediate level commander recommended that the applicant’s request be approved and that his service be characterized as general, under honorable conditions (GD); however, the separation authority directed a UOHC discharge.

 2. Legal/Regulatory Basis for Separation Action : Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter l0 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 a discharge for the good of the service in lieu of trial by court-martial. The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Army policy states that although an honorable or general discharge is authorized, a discharge UOHC is normally considered appropriate.
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 981119, with seven (7) 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 D.C. on 13 January 1999.

         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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (21) The characterization of service was too harsh.
         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.

 (21) The issue is accepted. There was a full consideration of all service including the infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board took special note of the recommendations for GD, made by the applicant’s unit and first intermediate level commanders, and determined that the characterization of service was inequitable. The quality of the applicant's service did not warrant the granting of an under other than honorable conditions discharge. The applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient merit to warrant an upgrade of the discharge being reviewed. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions. The Board determined that the reason discharge was proper and equitable and voted not to change it.


(1) thru (20) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his discharge was inequitable because the preponderance of his service was honorable; that his discharge was based on one isolated incident; and that his post service conduct has been excellent and that these issues warrant an upgrade of his discharge. However, the Board concluded these factors do not mitigate the applicant’s misconduct sufficiently to warrant relief beyond that already provided in response to issue (21) above.

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                       .

         ( )      Equitable.
         ( X )    Inequitable as to characterization. Change characterization to General, Under Honorable Conditions
          ( )      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 5 0

         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. JOSEPH A. ADRIANCE
Case Reviewing Official 


PART VIII - DIRECTIVE/CERTIFICATION
SECTION A – DIRECTIVE

TO: ARBA Support Division-St Louis Date: 15 January 1999

The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I directs that the ARBA Support Division-St Louis issue a new DD Form 2l4 to the applicant which reflects the following directed change(s):

 ( X )    Characterization of discharge be changed to General, Under Honorable Conditions.

 ( X )    Other (see remarks below).
Remarks: Restore the applicant’s grade to Sergeant/E-5.

SECTION B - CERTIFICATION
Approval Authority:


THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




SUZANNE WALKER
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: 98012381 INDEX NUMBERS: A9218
Date of Review: 990113 A9222
Character of Service: UD A9236
Date of Discharge: 940615 A0100
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: GD 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       





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