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ARMY | DRB | CY1998 | 1998012722
Original file (1998012722.rtf) Auto-classification: Denied
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): 930503

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): Record (960805)


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            ARCOM
a. Period entered for: 6 Years SWASM
b. Entry date: 890512 KLM
c. Age: 22 Years DOB: 661001 NCOPDR(1)
d. Educational level: HS Grad OSR
e. Aptitude area score: CIB
          GT: 100 3. Highest grade achieved:
f. Length of Service: E5
3 Years 11 Months 22 Days

4. Performance evaluations:
See OMPF

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:

         Date     Offense(s)
         920122   Unlawfully strike in the face (911225)
         920902 Reckless manner by driving at excessive speeds (920809)
          921106   Unlawfully strike a child (920926)
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 850122 871229 HD
         RA 871230 890511 HD



PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. The evidence of record shows that the applicant was charged with violations of Articles 80, 125, and 134 of the UCMJ. On 19 February 1993, 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. On 5 April 1993, the separation authority approved the applicant’s request for separation and directed a UOHC discharge. On 14 April 1993 a memorandum from the Staff Judge Advocate (SJA) solicited the separation authority’s action on the applicant’s approved elimination in view of the applicant’s pending Physical Evaluation Board (PEB) Proceedings. The SJA recommended that the applicant not be referred into the Physical Disability System and that the separation authority affirm his original decision that the applicant be discharged with a UOHC. On
14 April 1993 the separation authority approved the recommendations of the SJA.

         b. On 3 May 1993, the applicant was discharged with a UOHC discharge. At the time of discharge, the applicant had completed 3 years, 11 months, and
22 days of his current enlistment, and a total of 8 years, 3 months, and 12 days of active military service.

         c. The applicant’s record shows that he had completed over 8 years of service; attained the rank of sergeant/E-5; completed an overseas tour in Germany; served in combat during Operation Desert Storm; and earned an Army Commendation Medal, Army Achievement Medal, Good Conduct Medal, and the Combat Infantryman Badge. His disciplinary record for the period of service under review includes his acceptance of three Article 15’s: the first for unlawfully striking in the face on 25 December 1991; the second for operating a motor vehicle in a reckless manner which resulted in his reduction in rank to specialist/E-4; and the third for unlawfully striking a child which included a reduction in rank to private/E-1. The evidence of record reflects that the applicant, after consulting counsel, voluntarily requested an administrative discharge rather than face a trial by court-martial and the punitive discharge that may have resulted. There was no evidence to show that the applicant suffered from any disqualifying psychiatric condition at the time of his separation. He elected not to undergo a physical examination and requested that the pending PEB proceedings be dropped in order for his discharge to be approved.

 2. LEGAL/REGULATORY BASIS FOR SEPARATION : 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 980505, with four (4) 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 Examiner

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

         c. Review/hearing location and date:
(1) Video Recording Site: Dallas, Texas on 23 February 1999.
 (2) Board Site: Washington D.C. on 1 March 1999.




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

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( X ) Yes ( ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: Applicant submitted additional infromation.

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

 (1) and (2) The issues are rejected. The Board noted the applicant’s contentions that, in effect, he was never convicted of wrong doing and that he served honorably to include combat service. However, the evidence of record shows that 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 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. 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. Finally, the Board considered the applicant’s entire record of service for the period under review. 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 Board noted the applicant’s contentions that, in effect, his misconduct was the result of marital problems, resulting from his suffering from a Post Traumatic Stress Disorder (PTSD), which has been recognized by the VA with a disability award; and that he is now getting treatment and would like to move on with his life. However, after carefully examining the applicant’s record of service for the enlistment under review, the Board concluded that these issues do not mitigate the applicant’s misconduct sufficiently to warrant an upgrade of his discharge. Further, award of a VA disability rating alone does not provide a basis for relief.

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                       .

         ( 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: 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
NONE
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: 98012722 INDEX NUMBERS: A9217
Date of Review: 990301 A9207
Character of Service: UD A9221
Date of Discharge: 930503 A9321
Authority: AR 635-200 C10 A0100
Reason: A7000
Results of Board Action/
Vote/Affirmation: NC 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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