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ARMY | DRB | CY1999 | 1999015601

Original file (1999015601.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): 850909

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): NONE

PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

1.       Service data: 2. Awards and decorations:
                           GCMDL(2)
a. Period entered for: 3 Years (3 mos ext) NCOPDR
b. Entry date: 821104 (831004) OSR(2)
c. Age: 24 Years DOB: 571214
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 110 3. Highest grade achieved:
f. Length of Service: E5
2 Years 10 Months 6 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)
         830418 AWOL (830413-830413)
         __________________________________________________________________________
         840326 Administrative: Letter of Reprimand–DUI (840130)

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
         USAR 751223 760705 NA
         RA 760706 800203 HD
         RA 800204 821103 HD

PART IV - PREHEARING REVIEW

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

         a. The available records do not contain specific information on the circumstances surrounding the applicant’s discharge. However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), authenticated by the applicant, which documents the following: Character of Service-Under Other than Honorable Conditions (UOHC); Authority for Separation-Chapter 10, AR 635-200; Narrative Reason for Separation-For the Good of the Service-In Lieu of Court-Martial.

         b. On 9 September 1985, the applicant was discharged with a UOHC discharge. At the time of discharge, the applicant had completed 2 years, 10 months, and
6 days of his current enlistment, and a total of 9 years, 2 months, and 4 days of active military service.

         c. The applicant’s record shows that he completed just over 9 years of service, attained the rank of specialist/E-5, and successfully competed overseas tours in Germany and Korea. There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the record. There is a history of disciplinary infractions which include the applicant’s acceptance of an Article 15 on 18 April 1983 for being AWOL, and he received a letter of reprimand on 26 March 1984 for driving under the influence of alcohol on 30 January 1984. The specific circumstances surrounding the applicant’s discharge are not in the file but it is clear from the evidence of record that the applicant was charged with an offense or offenses punishable under the provisions of the UCMJ with a punitive discharge. It is further evident that the applicant elected to request an administrative discharge rather than face prosecution or the punitive discharge he may have received. The is documented with a properly constituted DD Form 214 contained in the record which was authenticated by the applicant.

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 981218.
         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 3 March 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:
         ( )     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), (2), and (3) The issues are rejected. The Board noted the applicant’s contentions that, in effect, family problems impaired his ability to serve; that he attempted to gain a compassionate reassignment but was refused by his chain of command; and that his discharge was too harsh given his record of service. However, after carefully examining the applicant’s record for the enlistment under review, the Board concluded that these factors did not mitigate the applicant’s misconduct sufficiently to warrant an upgrade of the discharge. While the available records do not contain the specific facts and circumstances concerning the events that led to a discharge from the Army, there is a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) in the record which was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed Government regularity in the discharge process. The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial. In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request 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. In the absence of information to the contrary, 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.

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: 1999015601 INDEX NUMBERS: A9217
Date of Review: 990303 A9307
Character of Service: UD A9405
Date of Discharge: 850909 A9903
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.      Mbr     X         X

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ARMY | DRB | CY1999 | 1999015601

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