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ARMY | DRB | CY2001 | 2001061360
Original file (2001061360.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): 880229

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

          b. Reason: For The Good of The Service-In Lieu of 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
a. Period entered for: 3 Years GCMDL
b. Entry date: 850301 NCOPDR
c. Age: 24 Years DOB: 600522 ASR
d. Educational level: HS Grad OSR
e. Aptitude area score:
          GT: 114 3. Highest grade achieved:
f. Length of Service: E5
2 Year(s) 11 Month(s) 29 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:

         Date     Offense(s)
         860808   Threw water in the face of a SPC (860623); communicated indecent language to a SPC (860502); threatened a SPC (860723) and disobeyed a lawful command from a 2LT (860731).
         __________________________________
          861201   Letter of reprimand (NIF) taken from listing on the attachment to the Bar to Reenlistment.
7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: The applicant has a CID Report of Investigation, dated (870910); and an approved Bar to reenlistment in file dated (861230).
Vacation of suspension (861007); driving a motor vehicle while
drunk.
SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         RA       810731   850228   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 29 February 1988, DA, HQ, US Army Training Center and Fort Dix, NJ, Orders 060-187 discharged the applicant from the Regular Army, effective date 29 February 1988. The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which was authenticated by the applicant’s signature. His DD Form 214 indicates that he was discharged under the provisions of Chapter 10, AR 635-200 for the good of the service-in lieu of court-martial, with a characterization of service of under other than honorable conditions (UOHC). Furthermore, the DD Form 214 shows a separation code of KFS (i.e., for the good of the service-in lieu of court-martial). The specific facts and circumstances leading to the applicant’s discharge are not contained in the available records.

         b. On 29 February 1988, the applicant was discharged with an under other than honorable conditions discharge. At the time of discharge, the applicant had completed 2 years, 11 months, and 29 days of active military service in the period under review and had a total of 6 years, 6 months, and 27 days of active military service.

         c. The applicant’s record shows that on 2 November 1987 he refused nonjudicial punishment under the provisions of Article 15, UCMJ, and demanded trial by court-martial for unlawfully striking a child under the age of 16; unlawfully striking a female soldier in the eye with a closed fist; and, unlawfully striking another female soldier in the face with a closed fist. The charges were referred to summary court-martial. On 25 November 1987, the applicant objected to trial by summary court-martial; and, subsequent to his objection, the applicant’s chain of command recommended trial by special court-martial empowered to adjudge a Bad Conduct Discharge.

2. Legal/Regulatory Basis for Separation Action :
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 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 discharge for the good of the service in lieu of trial by court-martial. The request 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 under other than honorable conditions 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 010814, with five (5) 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, DC on 3 October 2001 .

         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) The issue is rejected. The Board carefully examined the applicant’s record of service during the period of enlistment under review. There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses. The applicant’s voluntary request for discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, is not contained in the record. However, the record does show the applicant was charged with unlawfully striking a child under the age of 16; unlawfully striking a female soldier in the eye with a closed fist; and, unlawfully striking another female soldier in the face with a closed fist. Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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. In the absence of information to the contrary, 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 would have been aware of that prior to requesting discharge. The Board determined that the applicant’s alcohol abuse did not sufficiently mitigate his misconduct of record. The Board acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in his application. However, in review of the applicant’s entire service record, the Board found that these accomplishments did not overcome the reason for discharge and characterization of service granted. 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       

                                 
Ms. McKim-Spilker
Case Reviewing Official 

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

Approval Authority:


GERARD W. SCHWARTZ
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: 2001061360 INDEX NUMBERS: A9405
Date of Review: 011003 A9217
Character of Service: UD A9235
Date of Discharge: 880229 A0100
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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