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ARMY | DRB | CY2003 | 2003093008
Original file (2003093008.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): 970724

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:
                            GCMDL
a. Period entered for: 4 Years NDSM
b. Entry date: 951220 ASR
c. Age: 22 Years DOB: 730415
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 121 3. Highest grade achieved:
f. Length of Service: E4
1 Year(s) 1 Month(s) 24 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 961104-970414;

         Mil conf 0

         Civil conf 0

         Other 0


6. Nonjudicial punishment:

         Date     Offense(s)
        

         _____________________________________
         
         961018   Letter of reprimand-for driving while under the influence of alcohol (Administrative).

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 Military Police Report in file dated (960922).


SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         USAR     920326   920617   NA
         ADT      920618   920820   NA
         USAR     920821   930203   NA
         RA       930204   951219   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 21 July 1997, Orders 202-0168, DA, HQ, US Army Armor Center, Fort Knox, Kentucky, discharged the applicant from the Regular Army, effective date: 24 July 1997. The record contains a properly constituted DD form 214 (Certificate of Release or Discharge from Active Duty). His DD Form 214 indicates that he was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions discharge. Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial) with an RE code of 3. The specific facts and circumstances leading to the applicant’s discharge proceedings are not contained in the available records. The applicant was to be reduced to the lowest enlisted rank.

         b. On 24 July 1997, the applicant was discharged. At the time of discharge, the applicant had completed 1 year, 1 month, and 24 days of active military service and accrued 162 days of lost time in the period under review and had a total of 4 years, 10 months and 17 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 under other than honorable conditins 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 030709, with two (2) 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 11 February 2004 .

         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 and noted his contention. The Board congratulates the applicant on his work achievements since departing the Army. The applicant’s record is void of the specific facts and circumstances that led to his request for separation under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. The applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). This document identifies the reason and characterization of the discharge and the Board presumed Government regularity in the discharge process. 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. In doing so, the applicant admitted guilt to the stipulated or lesser-included 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, 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 2 3

         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. RON WILLIAMS
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: 2003093008 INDEX NUMBERS: A9219
Date of Review: 040211 A9221
Character of Service: UD A9217
Date of Discharge: 970724 A0100
Authority: AR 635-200 C10
Reason: A7100
Results of Board Action/
Vote/Affirmation: NC 3-2 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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