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ARMY | DRB | CY1998 | 1998012740
Original file (1998012740.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): 850419

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

          b. Reason: For the Good of the Service
4. Prior review(s): Personal Appearance (871120)


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 GCMDL(3)
b. Entry date: 830606 L/C(2)
c. Age: 31 Years DOB: 510721
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 100 3. Highest grade achieved:
f. Length of Service: E6
1 Years 10 Months 14 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: NONE
         Date     Offense(s)
        
         __________________________________________________________
         840917 Letter of reprimand – speeding (840915)

7. Court-Martial data:

         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)
                  850206 Wrongfully appropriated $60.00 of currency (841104)
8.       Remarks: NONE
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         RA 740930 760829 HD
         RA 760830 790704 HD
         RA 790705 830605 HD



PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. The evidence of record shows that on 4 April 1985, the applicant was charged with assaulting a SGT (850302); unlawfully striking a female, on the face with his hand and choking her (850302); resisting apprehension by military policemen (850302); wrongfully failing to register two privately owned firearms in his possession within 72 hours subsequent to the introduction of the weapons onto the installation (850305). On 9 April 1985, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter l0, AR 635-200 for the good of the Service-in lieu of 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 commanders recommended approval of a UOHC discharge. On 16 April 1985, the separation authority approved the applicant’s request and directed a UOHC discharge and that the applicant be reduced to the lowest enlisted rank.

         b. On 19 April 1985, the applicant was discharged with a UOHC discharge. At the time of discharge, the applicant had completed 1 year, 10 months, and 14 days of his current enlistment and a total of 10 years, 6 months, and 20 days of active military service.

         c. The applicant’s record shows that he completed over 10 and ½ years of service, attained the rank of staff sergeant/E-6, completed an overseas tour in Germany, and earned three Good Conduct Medals and the Army Commendation Medal. The applicant’ disciplinary record for the enlistment under review includes a letter of reprimand for speeding and conviction by a general court-martial, adjudged on 6 February 1985, for wrongfully appropriating $60.00 of currency. His sentence included a reduction in rank to specialist/E-4. The evidence of record also shows that on 4 April 1985 a DD Form 458 (Charge Sheet) was prepared preferring three court-martial charges against the applicant for the following violations: Article 128 (assault), two specifications; Article 95 (resisting apprehension); and Article 92 (violating a lawful general regulation. The applicant, after consulting counsel, voluntarily requested an administrative discharge in order to avoid a trial by court-martial and the punitive discharge that may have resulted.

 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 981020, with four (4) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE
         C-1: DD Form 149, dated 980407.

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
         ( ) Tender Offer

         c. Review/hearing location and date: Washington D.C. on 25 January 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: Fifteen (15) additional documents.

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) The issue is rejected. The Board noted the applicant’s contention that, in effect, he deserved an honorable discharge for the enlistment under review. 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. 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. 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 1 4

         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       

                                 
COL GOTTLIEB
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: 99012740 INDEX NUMBERS: A9217
Date of Review: 990125 A9500
Character of Service: UD A0100
Date of Discharge: 850419
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: NC 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.      PO      X          X    





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