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ARMY | DRB | CY1999 | 1999026240
Original file (1999026240.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): 980521

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:
                            AAM(4)
a. Period entered for: 6 Years GCMDL(4)
b. Entry date: 951207
c. Age: 33 Years DOB: 620418
d. Educational level: 14 Years
e. Aptitude area score:
          GT: 115 3. Highest grade achieved:
f. Length of Service: E6
2 Years 5 Months 15 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 820522 850418 HD
         RA 850419 871207 HD
         RA 871208 901206 HD
         RA 901207 920416 HD
         RA 920417 951206 HD



PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 29 January 1998, a court-martial charge was preferred against the applicant for wrongfully using cocaine, two specifications: the first between 25 and 28 August 1997; and the second between 22 and 24 December 1997. On 23 March 1998, 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 did not submit a statement in his own behalf. The unit commander and intermediates commander recommended approval of the applicant’s request with a UOHC discharge. On 7 April 1998, the separation authority approved the discharge with a UOHC discharge, and directed that the applicant be reduced to the lowest enlisted rank.

         b. On 21 May 1998, the applicant was discharged with a UOHC. At the time of discharge, the applicant had completed 2 years, 5 months, and 15 days of his current enlistment, and a total of 15 years, 7 months, and 21 days of active military service.
         c. The applicant’s record shows that he completed over 15 years of service; attained the rank of staff sergeant/E-6; completed two overseas tours in Germany; and earned four Army Achievement Medals and four Good Conduct Medals. A court-martial charge was preferred against the applicant for two specifications of the wrongful use of cocaine: the first between 25 and 28 August 1997; and the second between 22 and 24 December 1997. After consulting counsel, the applicant voluntarily requested an administrative discharge in order to avoid prosecution and the punitive discharge which may have resulted. There is no indication that the applicant contested the court-martial charge or that he was coerced into requesting separation. The applicant was afforded all rights associated with the action, was fully briefed on the impact of receiving an under other than honorable conditions discharge, and was advised of the loss of Army and Veterans benefits, prior to his requesting discharge, in lieu of trial by court-martial.

 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 981125.
         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 23 June 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

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

 (7) The issue is accepted. There was a full consideration of all service including the infractions of discipline, the extent thereof, and the seriousness of the offenses. 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 partial 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), (3), and (5) The issues are rejected. The Board noted the applicant’s contentions; however, found that the applicant’s misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge. The Board determined that relief beyond that already provided in response to issue (7) above was not warranted.
(2), (4), and (6) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his discharge was inequitable and he should have all benefits to include unemployment, lost pay, education, and medical and dental care reinstated; that his loss of his leave days because of his discharge was unfair, in that, it was based on the importance of his job; and that this loss of benefits has caused an undue hardship on his family. However, restoration of Army and Department of Veterans Affairs (VA) benefits is not within the purview of the Army Discharge Review Board (ADRB). The ADRB may only change the characterization or reason for discharge. If the applicant still believes there is an error or injustice in his discharge, and would like to pursue his request for benefit restoration, he may make application to the Army Board for Correction of Military Records 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                       .

         ( )      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 4 1

         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: 25 June 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 staff sergeant/E-6.

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: 1999026240 INDEX NUMBERS: A9218
Date of Review: 990623 A9222
Character of Service: UD A9236
Date of Discharge: 980521 A9446
Authority: AR 635-200 C10 A0100
Reason: A7000
Results of Board Action/
Vote/Affirmation: GD 4-1 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.      PO      X      X       





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