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ARMY | DRB | CY2003 | 2003089983

Original file (2003089983.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): 970723

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

         b. Reason: In Lieu of Trial by Court-Martial

4. Prior review(s): 001025

PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

1.       Service data: 2. Awards and decorations:
                           NONE
a. Period entered for: 4 Years
b. Entry date: 960912
c. Age: 26 Years DOB: 700608
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 107 3. Highest grade achieved:
f. Length of Service: E2
0 Year(s) 10 Month(s) 9 Day(s)

4. Performance evaluations:
NONE

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

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL 970121-970122;

         Mil conf 0

         Civil conf 0

         Other 0

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: The applicant has an Alcohol Influence Report dated (970606) and a Maryland State Police Criminal Investigation Report dated (950214) in file.

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 on 16 July 1997, the applicant was charged with procuring herself to be enlisted as a PV2 and receiving pay and allowances (960912); failing to go to her appointed place of duty (970606); disrespectful in language toward a CPT (970606); disobeying a lawful command from a CPT, two specifications (970606); disobeying a lawful order from a 1SG (970606); disrespectful in language toward a 1SG (970606); failing to obey a lawful order from a LTC (970606); assaulting a SPC (970606); drunk and disorderly (970606); as a result of previous overindulgence in intoxicating liquor incapacitated for the proper performance of your duties (970606) and breaking restriction (970606). On 15 July 1997, 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 offenses, or lesser-included offenses. Further, the applicant indicated that she understood that she 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 in her own behalf. The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge. On 17 July 1997, 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 23 July 1997, the applicant was discharged. At the time of discharge, the applicant had 10 months, and 9 days on her current enlistment under review.

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 030428.
         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 27 October 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: 2 new issues.

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: (3) 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.

(3) The issue is accepted. The Board carefully examined the applicant’s record of service during the period of enlistment under review and heard her 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. While the Board does not condone the applicant’s misconduct, it determined that she presented sufficient mitigating circumstances to partially overcome the characterization of service granted. Based on the foregoing, the Board found that the characterization of service granted is now inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions.

(1) and (2) The issues are rejected. The Board determined that the applicant’s misconduct diminished the quality of her service below that meriting a fully honorable discharge. Additionally, the Board found that the reason for discharge was both proper and equitable, and voted not to change it.

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 General, Under Honorable Conditions .
         ( )      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 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: 31 October 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 General, Under Honorable Conditions.
( X )   Other (see remarks below).

Remarks: Restore grade to private/E-2.

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: 2003089983 INDEX NUMBERS: A9406
Date of Review: 031027 A9308
Character of Service: UD A0100
Date of Discharge: 970723
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: GD 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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ARMY | DRB | CY2003 | 2003089983

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