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ARMY | DRB | CY1999 | AR1999022540
Original file (AR1999022540.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): 970416

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

          b. Reason: In Lieu of Trial by 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:
                            ARCOM(2)
a. Period entered for: 3 Years AAM(5)
b. Entry date: 940808
c. Age: 24 Years DOB: 690911
d. Educational level: 13 Years
e. Aptitude area score:
          GT: 111 3. Highest grade achieved:
f. Length of Service: E5
2 Years 7 Months 7 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 961107-961208

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment:

         Date     Offense(s)
         941130 Intent to deceive, reconstruct an official document (940801)

7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: Bar to Reenlistment (960814)
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         RA 870902 900111 HD
         RA 900112 930111 HD
         RA 930112 940807 HD



PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. The evidence of record shows that on 17 December 1996, a court-martial charge was preferred against him for being AWOL from 7 November 1996 to
9 December 1996. On 17 December 1996, 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 recommended approval of the applicant’s request with a UOHC discharge. On 13 February 1997, the separation authority approved the applicant’s request and directed that he be separated with a UOHC discharge, and that he be reduced to the lowest enlisted rank.

         b. On 16 April 1997, the applicant was discharged with a UOHC discharge.
At the time of discharge, the applicant had completed 2 years, 7 months, and
7 days of his current enlistment, a total of 9 years, 6 months, and 13 days of active military service and he had accrued 33 days of time lost due to AWOL.

         c. The applicant’s record shows that he completed over 9 years of active duty; that he had attained the rank of sergeant/E-5; and that he had earned two Army Commendation Medals, five Army Achievement Medals, two Good Conduct Medals, the Humanitarian Service Medal. His disciplinary record includes his acceptance of an Article 15 on 30 November 1994, for altering a DA form 31 (Request and Authority for Leave) by changing with the intent to deceive the number of leave days taken which included a reduction in rank to specialist/E-4. He had also been barred from reenlistment for declining attendance at the basic NCO course which was the basis for his requesting discharge based on his not being able to overcome the bar. He was scheduled to be separated on 31 January 1997. The evidence of record includes a leave verification form which indicates that the applicant was scheduled to begin his transition leave on 3 December 1996; however, there is no record of an approved period of permissive TDY nor does the record contain the actual approved DA Form 31. The unit documented the applicant’s status as changing from present for duty to AWOL effective 7 November 1996, and indicated that the applicant failed to report for duty on 4 November 1996, and that he was neither in a leave or TDY status at the time. The applicant surrendered to military authorities on 9 December 1996 and a court-martial charge for AWOL was preferred against him for being AWOL from 7 November to 9 December 1996. At this time the applicant consulted counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment authorized under the UCMJ and of the possible effects of an under other than honorable conditions discharge if he elected to request an administrative separation, in lieu of trial by court-martial. Defense counsel also advised the applicant that the government had not received the necessary documentation and or records with which to obtain a conviction by court-martial at the time he was being counseled, and that his counsel was limited by the records that were available as to the best advise to give him. However, the applicant, even after completing a statement that knowing all this t be true, he still willingly and voluntarily declared his guilt to being AWOL for the period indicated. At this time the applicant, even after having advised of all the legal and social ramifications of a UOHC discharge, still decided to voluntarily request an administrative separation in order to avoid prosecution and the punitive discharge which may have resulted. The evidence further shows that the applicant elected not to submit a statement in rebuttal to action or to raise any issues of propriety of the discharge action.

 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 981221, 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 5 May 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:


SECTION A-Attendees and exhibits

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:

Counsel Issues: (5) The discharge was improper based on the AWOL
charge being erroneous.
                           (6) The discharge was improper because the applicant
was provide insufficient counsel at the time of
his Chapter 10 discharge.
(7) The applicant’s overall record of service
warrants a fully honorable discharge.
         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 parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

 (5) and (6) The issues are rejected. The Board noted the contentions of counsel that, in effect, the applicant’s discharge was improper because the AWOL charge was erroneous; and that he had insufficient counsel for his chapter 10 action. However, after carefully examining the evidence of record the Board found neither evidence of record or independent evidence to corroborate these claims. 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. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

          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), (3), (4), and (7) The issues are rejected. 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. 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.


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: 1999022540 INDEX NUMBERS: A0113
Date of Review: 990505 A0139
Character of Service: UD A9217
Date of Discharge: 970416 A9229
Authority: ART 635-200 C10 A9407
Reason: A7100
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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