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ARMY | DRB | CY1999 | AR1999017167
Original file (AR1999017167.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): 950725

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

          b. Reason: In Lieu of Trial by Court-Martial
4. Prior review(s): Records/970321


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            AAM(2)
a. Period entered for: 3 Years NDSM
b. Entry date: 931013 ASR
c. Age: 19 Years DOB: 740125 OSR
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 110 3. Highest grade achieved:
f. Length of Service: E3
1 Year 6 Months 12 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 950221-950521

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment:

         Date     Offense(s)
         950215 FTG (950206)

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
         ARNG 921017 931012 HD




PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 30 May 1995, a court-martial charge was preferred against the applicant for being AWOL from 21 February to 22 May 1995. On 30 May 1995, 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 commander recommended approval of the applicant’s request with a UOHC discharge. On
21 June 1995, 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 25 July 1995, the applicant was discharged with a UOHC discharge. At the time of discharge, the applicant had completed 1 year, 6 months, and 12 days of active military service and had accrued 90 days of time lost due to AWOL.

         c. The applicant’s record shows that he completed 1 and ½ years of service; attained the rank of private first class/E-3; that he completed an overseas tour in Korea; and that he earned two Army Achievement Medals. His disciplinary record includes his acceptance of an Article 15 on 15 February 1995 for failing to be at his prescribed place of duty which resulted in his reduction to private/E-2. A court-martial charge was preferred against the applicant for a 90 day period of AWOL and voluntarily requested and administrative separation in order to avoid prosecution and the punitive discharge which may have resulted.
2. 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 990302, 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: Tampa, Florida on 13 May 1999.
                  Board Site: Washington D.C. on 19 May 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: NONE

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: (7) The characterization of service was too harsh.

          b. Request: ( X ) Recharacterization ( X ) 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.


(7) The issue is accepted. There was a full consideration of all service including the infraction of discipline, the extent thereof, and the seriousness of the offense. The Board determined that the characterization of service was inequitable because 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 relief in the form of an upgrade of characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it.


(1), (2), (3), (4), (5) and (6) See Paragraph 3, below.

3. Responses to items not addressed as decisional issues:

 Inasmuch as the Board voted to grant the relief requested by the applicant, responses to remaining issues are neither required nor rendered.


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 3 2

         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: 21 May 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 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: 1999017167 INDEX NUMBERS: A9204
Date of Review: 990519 A9218
Character of Service: UD A9324
Date of Discharge: 931013 A9336
Authority: AR 635-200 C10 A0100
Reason: A7100
Results of Board Action/
Vote/Affirmation: GD 3-2 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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