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ARMY | DRB | CY1998 | 1998012482
Original file (1998012482.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): 870105

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): Records/910529


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            ASR
a. Period entered for: 3 Years
b. Entry date: 850801
c. Age: 20 Years DOB: 650123
d. Educational level: 10 Years
e. Aptitude area score:
          GT: 104 3. Highest grade achieved:
f. Length of Service: E2
1 Year 3 Months 4 Days

4. Performance evaluations:
NONE

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

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL 860818-860822; 860825-861011

         Mil conf

         Civil conf 861012-861020

         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
NONE

Other discharge(s):

          Service   From      To        Type Discharge





PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 27 October 1986, a court-martial charge was preferred against the applicant for two periods of AWOL: the first from 18 August to 23 August 1986; and the second from 25 August 1986 to
21 October 1986. On 28 October 1986, 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 elected not to submit a statement in his own behalf. The unit commander and intermediate level commanders recommended approval of a UOHC discharge. On 3 December 1986, the separation authority approved the applicant’s request for separation and directed that the applicant receive a UOHC discharge and be reduced to the lowest enlisted grade.

         b. On 5 January 1987, the applicant was discharged with a UOHC discharge. At the time of discharge, the applicant had completed 1 year, 3 months, and
4 days of his current enlistment and accrued 62 days of time lost due to AWOL.

         c. The applicant’s record shows that he completed just over a year of service and the highest rank he attained while on active duty was privat/E-2. There are no documented acts of valor, significant achievement, or service warranting special recognition. The evidence of record reflects that a court-martial charge was preferred against the applicant for two periods of AWOL totaling 62 days. After consulting counsel, the applicant voluntarily requested an administrative separation in order to avoid prosecution and the punitive discharge which may have resulted.

 Legal/Regulatory Basis or 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 981123, with two (2) 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:
         ( ) Records review ( X ) Hearing

         b. Type Held:
         ( )Records review ( X ) Hearing Examiner
         ( ) Tender Offer

         c. Review/hearing location and date:
         Video Site: Chicago, Illinois on 12 June 1999.
         Board Site: Washington D.C. on 17 June 1999.

         d. Appearance by:
          Applicant ( X ) Yes ( ) No
          Counsel ( ) Yes ( X ) No

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibits submitted at hearing: Fifteen (15) additional documents containing seven (7) additional issues.

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: (18) 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.

 (18) The issue is accepted. The Board concluded that the applicant’s discharge was proper at the time it was issued. However, after carefully examining the circumstances which led to the applicant’s discharge; the testimony given by the applicant at his hearing; and the medical problems experienced by the applicant’s father, the Board, for compassionate reasons, found that the granting an under other than honorable conditions discharge was too harsh. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.

(1) thru 10, and (11), (13), (16), and (17). The issues are rejected. The Board noted all the applicant’s contentions that, in effect, state that his discharge was inequitable because the Army failed to honor his contract; that he was denied the right to perform duties in the military occupation specialty (MOS) for which he was trained; that his misconduct was wrong but the Army was more wrong in ignoring his MOS; and that he is a good American who would still serve his country. However, 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. After consulting with defense 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 offenses under the UCMJ. 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 beyond that granted in response to issue (18) above.
(12), (14), and (15) The issues are rejected. The records errors pointed out by the applicant are not within the purview of the Army Discharge Review Board (ADRB). The ADRB may only change the characterization or reason for discharge. The proper venue for correction of military records in these areas is the Army Board for Correction of Military Records (ABCMR). The applicant may make application to the ABCMR utilizing the enclosed DD Form l49.

 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 4 1

         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. ADRIANCE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 22 June 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 )   Change the characterization of the discharge to General, Under Honorable Conditions.

 ( X )   Other (see remarks below).
Remarks: Restore the applicant’s grade to private/E-2.


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: 1998012482 INDEX NUMBERS: A9218
Date of Review: 990617 A9232
Character of Service: UD A9408
Date of Discharge: 870105 A9445
Authority: AR 635-200 C10 A0100
Reason: A7100
Results of Board Action/
Vote/Affirmation: GD 4-1 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.      Mbr      X      X       

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