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ARMY | DRB | CY2003 | 2003090220
Original file (2003090220.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): 021227

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:
                            MSM                       NCOPDRw/Num2
 a. Period entered for: Indef ARCOM(4 th Awd)      ASR
b. Entry date: 020517 AAM(5 th Awd)       OSR(2d Awd)
c. Age: 31 Years DOB: 710402 GCMDL(3d Awd)       NM
d. Educational level: HS Grad NDSM(2d Awd)       KCM
e. Aptitude area score: HSM
          GT: 118 3. Highest grade achieved:
f. Length of Service: E6
0 Year(s) 7 Month(s) 10 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       911104 970316    Honorable
          RA                970317 020516             Honorable


PART IV - PREHEARING REVIEW

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

          a. All of the specific facts and circumstances pertaining to the applicant’s discharge are not contained in the available records. The available evidence of record shows that on 30 July 2002, the applicant was charged with stealing 77 digital video discs, 23 video cassette tapes, four compact discs, and three sets of earphones of a value of $2,167, the property of the Vogelweh Movie or Music Store on (020502). On 9 December 2002, the separation authority approved the discharge with an under other than honorable conditions discharge. On 23 December 2002, DA, United States Army Europe, Kaiserslautern Transition Center, APO AE 09054, Orders 357-01, discharged the applicant from the Regular Arm, effective 27 December 2002. The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which was authenticated by the applicant. Her DD Form 214 indicates that she 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. The applicant was to be reduced to the lowest enlisted rank.

         b. On 27 December 2002, the applicant was discharged. At the time of discharge, the applicant had completed 7 months and 10 days of active military service in the period under review and had a total of 11 years, 1 month and
14 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 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 030502.
         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 10 December 2003 .

         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. All the specific facts and circumstances concerning the events that led to a discharge from the Army are not contained within the record. Absent from the official record is the applicant’s voluntary request for discharge under the provisions of Chapter 10, AR 635-200. However, the record does contain the separating authority’s final approval of the applicant’s voluntary request. The record also contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed Government regularity in the discharge process. In connection with this type of 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. In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ. The Board noted the applicant’s contentions; however, the official record does not support the applicant’s contentions and the Board determined that her contentions were not sufficiently mitigating to warrant an upgrade of the discharge under review. 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, 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:


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

Official:




MARY E. SHAW
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: 2003090220 INDEX NUMBERS: A9217
Date of Review: 031210 A9235
Character of Service: UD A0113
Date of Discharge: 021227
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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