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ARMY | DRB | CY1999 | 1999022339
Original file (1999022339.rtf) Auto-classification: Denied
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: UNCHAR

2. Date of discharge (or REFRAD): 850425

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
a. Period entered for: 4 Years NDSM
b. Entry date: 821217 OSR(2)
c. Age: 20 Years DOB: 620531
d. Educational level: GED
e. Aptitude area score:
          GT: 87 3. Highest grade achieved:
f. Length of Service: E4
1 Year 3 Months 3 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 850110-850214

         Mil conf

         Civil conf

         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

Other discharge(s):

          Service   From      To        Type Discharge
         RA 800318 821216 HD



PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

         a. The evidence of record shows that on 20 February 1985, a court-martial charge was preferred against the applicant for violation of Article 86 for being AWOL from 10 January to 15 February 1985. On 20 February 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 his 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 for separation with a UOHC discharge. On 26 March 1985, the separation authority approved the applicant’s separation and directed that he receive a UOHC discharge and that he be reduced to the lowest enlisted rank.

         b. On 25 April 1985, the applicant was discharged with an uncharacterized discharge, under the provisions of Chapter l0, AR 635-200, for the good of the Service-in lieu of court-martial. At the time of discharge, the applicant had
completed 1 year, 3 months, 3 days of his current enlistment, a total of 4 years and 2 days of active military service, and having had accrued 36 days of time lost due to AWOL.

         c. The applicant’s record reflects that he completed just over four (4) years of service; that the highest rank he attained while on active duty was specialist/E-4; that he completed an overseas tour in Korea; and that he earned a Good Conduct Medal. The record contains no documented acts of valor, significant achievement, or service warranting special recognition. There is also no record of disciplinary infractions prior to the incident which led to the applicant’s discharge. A court-martial charge was preferred against the applicant for AWOL, and after consulting counsel, he voluntarily requested an administrative separation in order to avoid prosecution and the punitive discharge which may have resulted. The separation authority approved the applicant’s request for separation and directed that he receive a UOHC discharge; however, the discharge was erroneously changed to an uncharacterized discharge by someone in the discharge process.

 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 990209, 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:
         ( X ) Records review ( ) Hearing

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

         c. Review/hearing location and date: Washington D.C. on 17 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) The issue is rejected. The Board noted the applicant’s contention that he is doing well now as evidenced by the character reference letters enclosed with his application. However, the Board concluded that this factor does not provide a basis for relief or mitigate the applicant’s misconduct. 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. 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.

(2) The issue is rejected. The Board noted the applicant’s contention that his DD Form 214 (Certificate of Release or Discharge from Active Duty) did not cover his first enlistment. However, this issue is not within the purview of the Army Discharge Review Board (ADRB). The ADRB may only change the characterization of service and or the reason for discharge. The Board did note that the applicant was issued a Certificate of Military Service by the National Personnel Records Center covering his first enlistment. Further, the Board noted that the applicant’s discharge for the enlistment under review should have been a UOHC as directed by the separation authority, but was erroneously changed to uncharacterized by someone in the discharge process. However, the Board elected not to change the discharge, based on its own policy not to render a decision which would result in a less favorable outcome for the applicant. If the applicant still believes there is an error or injustice in his discharge, he may apply to the Army Board for Correction of Military Records for consideration of his case, utilizing the DD Form l49 enclosed with this document.

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: 1999022339 INDEX NUMBERS: A9217
Date of Review: 990317 A9445
Character of Service: EL A0100
Date of Discharge: 850425
Authority: AR 635-200 C10
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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