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ARMY | DRB | CY1999 | AR1999024450
Original file (AR1999024450.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): 971107

3. Authority for separation:

         a. Regulation: Chapter 3, AR 600-8-24

          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:
                            NONE
a. Period entered for: Indef
b. Entry date: 961127
c. Age: 31 Years DOB: 651031
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 122 3. Highest grade achieved:
f. Length of Service: WO1
0 Years 11 Months 11 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)
        


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 840613 871209 NIF
         RA 871210 920924 NIF
         RA 920925 961126 NIF



PART IV - PREHEARING REVIEW

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

         a. The available records show that court-martial charges were preferred against the applicant for submitting a fraudulent claim, making a false official statements, and larceny of government funds. On 17 July 1997 the applicant requested resignation, in lieu of trial by court-martial, under the provisions of Paragraph 3-13, AR 600-8-24. On 11 September 1997, the general court-martial convening authority, U.S. Army Special Operations Command, Fort Bragg, North Carolina, recommended approval of the applicant’s request for resignation and further recommended that the applicant receive an under other than honorable conditions (UOHC) discharge. On 1 October 1997 the AD HOC Review Board voted unanimously to accept the applicant’s resignation and recommended that he receive a UOHC discharge. On 9 October 1997 the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASAM&RA), approved the findings and recommendations of the AD HOC Review Board, and directed that the applicant’s resignation be accepted and that he be separated with a UOHC discharge.

         b. On 7 November 1997, the applicant was discharged with a UOHC discharge. At the time of his discharge the applicant had completed 11 months and 11 days of active duty as a warrant officer, 12 years, 5 months, and 14 days of active duty as an enlisted soldier, for a total of 13 years, 4 months, and 25 days of active military service.

         c. The applicant’s record indicates that he completed over 13 years of active duty; that the highest rank he attained while on active duty was Warrant Officer 1; and that he earned a Meritorious Service Medal; two Army Commendation Medal; six Army Achievement Medals; the Army Superior Unit Award; four Good Conduct Medals, the Humanitarian Service Medal, and the Armed Forces Expeditionary Medal. The evidence of record indicates that court-martial charges were preferred against the applicant and that he voluntarily requested resignation, in lieu of trail by court-martial, in order to avoid prosecution and the punitive discharge which may have resulted.
2. Legal/Regulatory Basis or Separation Action : Army Regulation 600-8-24 sets forth the basic authority for the separation of commissioned and warrant officers personnel. Chapter 3 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 resignation for the good of the service in lieu of trial by court-martial. 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 990308, with one (1) 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 19 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:

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), (3), and (4) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his discharge was inequitable because it was based on an isolated incident; that it was him that brought forward his indiscretion and he was not read his rights until two months after the fact; that his counsel was inadequate and only offered one course of action, resignation; and that he has now been accepted into the National Guard and his career potential with them is contingent on his receiving an upgrade to his discharge. However, the Board concluded that the applicant’s discharge was appropriate and that these factors do not mitigate his misconduct sufficiently to warrant relief. 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. 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: 1999024450 INDEX NUMBERS: A9217
Date of Review: 990519 A9219
Character of Service: UD A9221
Date of Discharge: 971107 A9235
Authority: AR 600-8-24 C3 A9329
Reason: A8000 A0100
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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