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ARMY | DRB | CY1999 | 1999027195
Original file (1999027195.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): 980516

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(3)
a. Period entered for: 4 Years 17 wks NDSM
b. Entry date: 941019 AFEM
c. Age: 20 Years DOB: 740329 ASR
d. Educational level: HS Grad OSR
e. Aptitude area score:
         GT: 121 3. Highest grade achieved:
f. Length of Service: E4
3 Years 6 Months 28 Days

4. Performance evaluations:
NONE

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
NONE

Other discharge(s):

          Service   From      To        Type Discharge





PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that court-martial charges were preferred against the applicant for robbery, receiving stolen property, and accessory after the fact, and that the applicant voluntarily requested separation, under the provisions of Chapter 10, AR 635-200, In Lieu of Trial by Court-Martial. On 27 February 1998, the Staff Judge Advocate recommended approval of the applicant’s request for discharge and recommended he receive an under other than honorable conditions (UOHC) discharge. Also on 27 February 1998, the separation authority approved the applicant’s request for separation and directed that he receive a UOHC discharge, and that he be reduced to the lowest enlisted rank. Although the applicant’s request for separation is not contained in the available records, there is a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), authenticated by the applicant, which documents the following facts: Character of Service-Under Other than Honorable Conditions (UOHC); Authority for Separation-Chapter 10, AR 635-200; and Narrative Reason for Separation-In Lieu of Trial by Court-Martial.

         b. The DD Form 214 also shows that the applicant was separated with a UOHC discharge on 16 May 1998 after completing 3 years, 6 months, and 28 days of active military service.

         c. The applicant’s record shows that he completed just over 3 and ½ years of service; attained the rank of specialist/E-4; served in Bosnia for 6 months; and earned three Army Achievement Medals. There is no disciplinary history recorded prior to the incident, which led to the applicant’s discharge. The record shows that court-martial charges were preferred against the applicant for robbery, receiving stolen property, and accessory after the fact, and that the applicant, after consulting counsel, requested an administrative separation in order to avoid prosecution and the punitive discharge which may have resulted.

 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 990528, 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:
         ( ) Records review ( X ) Hearing

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

         c. Review/hearing location and date: Washington D.C. on 16 August 1999.

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
         Counsel ( ) Yes ( X ) No

          e. Applicant testified: ( X ) Yes ( ) 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: (4) Discharge is inequitable.

         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:

 (4) The issue is accepted. The Board carefully examined the applicant's record of service during the period of enlistment under review. There was a full consideration of his testimony before the Board, all faithful and honorable service, and the infraction of discipline which led to his requesting discharge in lieu of trial by court-martial. While the Board does not condone the applicant's misconduct, the majority of the Board felt that the applicant's outstanding record of service and extenuating circumstances surrounding the act (i.e., the applicant did not instigate the criminal act but rather played only a minor role and was in fact a victim of circumstances) were sufficiently mitigating to grant relief. Further, the majority of the Board determined that his misconduct was an aberration in his record and that he should not have been separated solely based on this one incident. Therefore, the Board concluded that the discharge was inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable and change the reason for discharge to secretarial authority.
(1), (2), and (3) See Paragraph 3, below.

 3. Response(s) to item(s) not addressed as decisional issue(s):

Inasmuch as the Board voted to grant the full relief requested, responses to the remaining issues is 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 Honorable .
         ( X)     Inequitable as to reason. Change reason to Secretarial Authority
                  under Chapter 5, AR 635-200 .
         ( )      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 3 2
Characterization 5 0

         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: 20 August 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 )   Change characterization of discharge to Honorable .
( X )   Change reason and authority for discharge to
        Secretarial Authority, AR 635-200 .
( X )   Other (see remarks below).
Remarks: This action entails a change to the RE code to RE-1 .
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: 1999027195 INDEX NUMBERS: A9202
Date of Review: 990816 A9203
Character of Service: UD A9217
Date of Discharge: 980516 A0100
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: HD 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.      PO      X      X       





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