Upgrade.Vet

ARMY | DRB | CY1999 | 1999027205

Original file (1999027205.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): 950221

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:
                           GCMDL
a. Period entered for: 4 Years
b. Entry date: 931028
c. Age: 27 Years DOB: 660715
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 101 3. Highest grade achieved:
f. Length of Service: E5
0 Years 11 Months 28 Days

4. Performance evaluations:
See OMPF

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL 940814-941209

         Mil conf

         Civil conf

         Other

6. Nonjudicial punishment:

         Date     Offense(s)

         ________________________________________________________________________
         930819 Administrative: Letter of reprimand–Refusal to submit to a lawfully required blood alcohol test when apprehended for driving while impaired (930731).

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 850521 880323 HD
         RA 881012 931027 HD

PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 4 January 1995, a court-martial charge was preferred against the applicant for being AWOL from 14 August to 9 December 1994. On 5 January 1995, 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 on his own behalf. The unit commander and intermediate commander recommended approval of an UOHC discharge. On 27 January 1995, the separation authority approved the discharge with an UOHC discharge. The applicant was to be reduced to the lowest enlisted rank.

         b. On 21 February 1995, the applicant was discharged with a UOHC discharge. At the time of discharge, the applicant had completed 11 months, 28 days of his current enlistment, a total of 8 years, 10 months, 17 days of active military service, and he had accrued 116 days of time lost due to AWOL.

         c. The applicant’s record shows that he completed almost 9 years of service, attained the rank of sergeant/E-5; and had earned the Army Achievement Medal and the Good Conduct Medal. Although the DD Form 214 (Certificate of Release or Discharge from Active Duty) does not contain the appropriate awards entries verifying the service, the record does show that the applicant served 6 months in Southwest Asia during Operation Desert Storm. A court-martial charge was preferred against the applicant for being AWOL for 116 days, and after consulting counsel the applicant voluntarily requested an administrative separation in order to avoid prosecution and the punitive discharge which may have resulted. The applicant’s medical records which are used in support of his contentions also show that the applicant had been arrested for driving under the influence and admitted to substance abuse, carrying a weapon, and participating in several drive by shootings. Army Regulations provides that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.

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 990525, with two (2) 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 30 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:
         ( )     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), and (4) The issues are rejected. The Board noted the contentions of the applicant and his counsel that, in effect, his misconduct was the result of his suffering from Post Traumatic Stress Disorder (PTSD); that his discharge was inequitable because he was not provided adequate psychiatric treatment; and that his AWOL offense was a direct result of his PTSD. However, the evidence of record shows that the applicant voluntarily declined a separation medical examination, his medical records were reviewed by medical officials, and a determination was made that a medical examination for separation was not required. Army Regulation 635-40, paragraph 1-2, provides that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing. There was no such action taken in this case.

(3) The issue is rejected. The Board noted the contention of the applicant and his counsel that, in effect, his discharge was inequitable because it was based solely on his AWOL status. 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 offense 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 and that the applicant was aware of that prior to requesting discharge. 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.

(5) and (6) The issues are rejected. The Board noted the contentions of the applicant and his counsel that, in effect, he should be entitled to VA benefits; and that his DD Form 214 is incorrect and incomplete. However, eligibility for veterans benefits and corrections to military records are 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, he then 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                       .

         ( 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: 1999027205 INDEX NUMBERS: A9217
Date of Review: 990630 A9321
Character of Service: UD A9445
Date of Discharge: 950221 A0100
Authority: AR 635-200 C10
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.      PO     X         X

Similar Decisions

ARMY | DRB | CY1999 | AR1999017167

Original file (AR1999017167.rtf) Auto-classification: Approved

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. ( X ) Other (see remarks below).Remarks: Restore the applicant’s grade to private/ E-2.SECTION B - CERTIFICATION Approval Authority:THOMAS J. ALLEN Colonel, U.S. Army President, Army Discharge Review Board AR...
ARMY | DRB | CY1997 | 199700786

Original file (199700786.rtf) Auto-classification: Denied

950725: Applicant was discharged.2. 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.
ARMY | DRB | CY1999 | AR1999016028

Original file (AR1999016028.rtf) Auto-classification: Denied

The Board noted the contentions of the applicant and his counsel, that due to the circumstances of the case the UOHC discharge was too harsh; and that based on the applicant’s overall record of service the UOHC discharge was inequitable. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief. PART VII - BOARD ACTIONSECTION B - Verification and Authentication Case report reviewed and verified MR....
ARMY | DRB | CY2003 | AR2003093509

Original file (AR2003093509.doc) Auto-classification: Approved

Block 12a, DD Form 214, appears to be incorrect and should read “821230.” SECTION B - Prior Service Data Other discharge(s): Service From To Type Discharge RA 780929 810928 Honorable USAR 810929 821229 Honorable RA 821230 851215 Honorable RA 851216 910520 Honorable PART IV - PREHEARING REVIEW SECTION A-ANALYST’S ASSESSMENT l. Facts and Circumstances: a. Chapter l0 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the...
ARMY | DRB | CY1999 | 1999025350

Original file (1999025350.rtf) Auto-classification: Denied

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. PART VII - BOARD ACTIONSECTION B - Verification and Authentication Case report reviewed and verified MR. ADRIANCE Case Reviewing Official PART...
ARMY | DRB | CY1999 | 1999025278

Original file (1999025278.rtf) Auto-classification: Denied

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. PART VII - BOARD ACTIONSECTION B - Verification and Authentication Case report reviewed and verified MR. ADRIANCE Case Reviewing Official PART...
ARMY | DRB | CY1999 | 1999023429

Original file (1999023429.rtf) Auto-classification: Denied

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. PART VII - BOARD ACTIONSECTION B - Verification and Authentication Case report reviewed and verified MR. ADRIANCE Case Reviewing Official PART VIII - DIRECTIVE/CERTIFICATIONSECTION A - DIRECTIVE NONE SECTION B -...
ARMY | DRB | CY1999 | 1999025118

Original file (1999025118.rtf) Auto-classification: Denied

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. PART VII - BOARD ACTIONSECTION B - Verification and Authentication Case report reviewed and verified MR. ADRIANCE Case Reviewing Official PART VIII - DIRECTIVE/CERTIFICATIONSECTION A - DIRECTIVE NONE SECTION B - CERTIFICATION Approval Authority:THOMAS J. ALLEN Colonel, U.S. Army President, Army...
ARMY | DRB | CY1999 | 1999023597

Original file (1999023597.rtf) Auto-classification: Denied

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. PART VII - BOARD ACTIONSECTION B - Verification and Authentication Case report reviewed and verified MR. RON WILLIAMS Case Reviewing Official PART VIII - DIRECTIVE/CERTIFICATIONSECTION A - DIRECTIVE NONE SECTION B -...
ARMY | DRB | CY1999 | 1999025585

Original file (1999025585.rtf) Auto-classification: Denied

A-2: Counsel Issues: NONE B-l: Other Documents: NONE PART IV - PREHEARING REVIEW (CONTINUED) 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. PART VII - BOARD ACTIONSECTION B - Verification and Authentication Case report reviewed and verified MR. ADRIANCE Case Reviewing Official PART VIII - DIRECTIVE/CERTIFICATIONSECTION A - DIRECTIVE NONE...

Search Decisions

Decision Text

ARMY | DRB | CY1999 | 1999027205

Similar Decisions