Upgrade.Vet

ARMY | DRB | CY2003 | 2003086437

Original file (2003086437.rtf) Auto-classification: Approved

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): 001222

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) KLMDL
a. Period entered for: 3 Years (18 mos. ext.) AAM (4thAwd) NCOPDR (2)
b. Entry date: 970207 (971113) GCMDL (4thAwd) ASR
c. Age: 28 Years DOB: 680824 NDSM OSR
d. Educational level: HS Grad AFEM
e. Aptitude area score: SWASMDLw/3BSS
         GT: 119 3. Highest grade achieved:
f. Length of Service: E7
3 Year(s) 10 Month(s) 16 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       860625   890202   Honorable
         RA       890203   950504   Honorable
         RA       950505   970206   Honorable

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 14 December 2000, DA, Bad Kreuznach Transition Center, Bad Kreuznach, Germany, APO, AE, Orders 349-001 discharged the applicant from the Regular Army, effective date 22 December 2000. 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 by reason of for the good of the service-in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions. 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 22 December 2000, the applicant was discharged. At the time of discharge, the applicant had completed 3 years, 10 months, and 16 days of active military service in the period under review and had a total of 14 years, 5 months and 28 days of active military service.

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 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 030303, with one (1) 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, DC on 18 August 2003 .

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

         e. Applicant testified: ( X ) Yes ( ) No

         f. Counsel presentation: ( X ) Yes ( ) No

         g. Witness(es) testified: ( ) Yes ( X ) No

2. Exhibit(s) submitted at hearing: One (1) additional issue and nine (9)
documents.

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: (5) The characterization of service was too harsh.

         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.

(5) The issue is accep ted. The Board carefully examined the available records for the period of enlistment under review and heard the applicant’s testimony. 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 Board does not condone the applicant’s misconduct; however, determined that the characterization of service was inequitable. The applicant and his counsel provided convincing testimony that the applicant had become an unwitting participant in a conspiracy to defraud the government and at most was guilty of dereliction of duty. In view of the foregoing, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to fully honorable. The Board determined that the reason for discharge was proper and equitable and voted not to change it.

(1-4) The issues are rejected. The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. 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. Notwithstanding the decision of the Board to grant partial relief, 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. Further, changes to reentry eligibility (RE) codes do not fall within the purview of this Board. If the applicant desires to reenlist, he should contact the local recruiter to determine his eligibility to reenlist. Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. See response to issue (5) above.

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 Honorable .
         ( )      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 2 3
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. RIVERA
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis Date: 22 August 2003

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 )   Other (see remarks below).

Remarks: This action entails a restoration of grade to E-7.

SECTION B - CERTIFICATION

Approval Authority:

SPURGEON A. MOORE
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:

JOHN F. LONG
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: 2003086437 INDEX NUMBERS: A9406
Date of Review: 030818 A9218
Character of Service: UD A0143
Date of Discharge: 001222 A0113
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: HD 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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ARMY | DRB | CY2003 | 2003086437

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