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ARMY | DRB | CY2000 | 2000049940
Original file (2000049940.rtf) Auto-classification: Denied
PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: Under Other Than Honorable Conditions

2. Date of discharge (or REFRAD): 931213

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 (2ndAwd)
a. Period entered for: 2 Years AAM (4thAwd)
b. Entry date: 880708 GCMDL (2ndAwd)
c. Age: 28 Years DOB: 600109 NCOPDR (2)
d. Educational level: 13 Years L/C(1)
e. Aptitude area score: C/Ach
          GT: 119 3. Highest grade achieved:
f. Length of Service: E6
5 Year(s) 5 Month(s) 6 Day(s)

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       821015   850331   Honorable
         RA       850401   880707   Honorable



PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 12 June 1989 the applicant was convicted by a special court-martial of one specification of engaging in an improper senior/subordinate relationship and two specifications of adultery. He was sentenced to a Bad Conduct Discharge and a reduction to E-1. On 9 September 1992, the United States Court of Military Appeals ordered the applicant’s sentence set aside, and affirmed the remaining court-martial findings. The applicant was notified of a resentencing hearing and, after consultation with legal counsel, 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 offenses, or lesser included offenses. Further, the applicant indicated 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 his eligibility for veteran’s benefits. The applicant did not submit a statement in his own behalf. On 1 December 1992, the separation authority approved the discharge with an under other than honorable conditions discharge. The applicant was to be reduced to the lowest enlisted rank.

         b. On 13 December 1993, the applicant was discharged. At the time of discharge, the applicant had 5 years, 5 months, and 6 days on his current period of enlistment under review and 11 years, 1 month and 26 days, total time in service.

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 990701.
         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, DC on 13 December 2000 .

         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 ( 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.

 Counsel Issues:
(5) The issue is rejected. The Board carefully examined the applicant’s record of service during the period of enlistment under review. The evidence of record shows that the US Court of Military Appeals (Court) set aside the applicant’s special court-martial sentence, and affirmed the remaining findings; e.g., the charges were not dismissed and the findings of guilty were affirmed. The Court indicated that a rehearing for sentencing could be ordered, and upon notification of a sentence rehearing, and after consultation 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. 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.

Applicant Issues:
(1) The issue is rejected. See response to Issue (5), above.

(2), (3), and (4) The issues are rejected. The Board has not detected any errors in the applicant’s DD Form 214. This document shows that the applicant was appropriately discharged under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. The applicant’s issue pertaining to his benefits from the Department of Veterans Affairs does not fall within the purview of the Army Discharge Review Board.

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       

                                 
Ms. McKim-Spilker
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
SECTION B - CERTIFICATION

Approval Authority:


WILSON A. SHATZER
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




EARNEST C. SMITH, JR.
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: 2000049940 INDEX NUMBERS: A9217
Date of Review: 001213 A9235
Character of Service: UD A0100
Date of Discharge: 931213
Authority: AR 635-200 C10
Reason: A7000
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    






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