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ARMY | DRB | CY2003 | 2003094229
Original file (2003094229.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): 020923

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 ASR
b. Entry date: 981005
c. Age: 19 Years DOB: 790902
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 116 3. Highest grade achieved:
f. Length of Service: E4
3 Year(s) 11 Month(s) 19 Day(s)

4. Performance evaluations:
NONE

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
NONE

Other discharge(s):

          Service   From      To        Type Discharge





PART IV - PREHEARING REVIEW

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

         a . On 21 August 2002, the applicant was charged with three specifications in violation of the Uniform Code of Military Justice (UCMJ), Article 134 (i.e., willfully and unlawfully alter the military record of a Staff Sergeant/E6, willfully and unlawfully alter the military record of a Sergeant/E5, and wrongfully communicate a threat to a Specialist/E4). On 9 September 2002, 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 offense, or lesser-included offenses. Further, the applicant stated that she understood that she could receive a discharge under other than honorable conditions (UOHC) and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement on her own behalf. On 12 September 2002, the separation authority approved the discharge with a UOHC discharge. The applicant was to be reduced to the lowest enlisted rank.

          b. On 23 September 2002, the applicant was discharged. At the time of discharge, the applicant had completed 3 years, 11 months, and 19 days of active military service in the period 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 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 030805, 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 17 March 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:
Board Issue: (2) The characterization of service is too harsh.

         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.

 (2) The issue is accepted. 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 Board does not condone the applicant’s misconduct; however, determined that the characterization of service is inequitable. The Board found that the applicant’s misconduct was partially mitigated by the length and quality of her overall service, which included award of the Good Conduct Medal. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was both proper and equitable and voted not to change it.

(1) The issue is rejected. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board noted, after consulting with defense counsel, the applicant voluntarily, and in writing, requested 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 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, the applicant, by her misconduct and poor duty performance, diminished the quality of her service below that meriting a fully honorable discharge. See response to issue (2) 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 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 3 2

         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: Two members of the board submitted a minority view. That minority view indicates, in effect, that the applicant does not warrant relief by the Army Discharge Review Board; that the original characterization of service is consistent with current disciplinary standards; and that the applicant voluntarily sought the discharge in lieu of court martial. Contrary to the majority view, within the personnel field, altering official personnel documents, regardless of the reason for that alteration, is as serious an offense as altering financial or medical documents. The minority opined that the applicant violated a position of trust in tampering with personnel records, caused administrative harm to two noncommissioned officers, and threatened a fellow soldier in a malicious, unprofessional attempt at retribution because of a personal vendetta with a military police NCO who was performing his official functions. The applicant also “stole” a fellow soldier’s password to perpetrate this crime. Additionally, two members believed that the applicant, soon to reach the end of her service in the Army, had no intention of disclosing what she had done prior to her departure. Had the NCO not been diligently reviewing his records for an upcoming SFC board, the altering of those records would have gone unnoticed for an indeterminate amount of time, created significant financial problems within the system for both NCOs, and would have required additional time and effort to correct. Finally, the applicant, discharged for less than two years, made no statement in her defense or as an apology for her actions when she requested Chapter 10 in lieu of court martial, nor--to this date--has she shown any remorse for actions or sufficient post-service conduct to mitigate the offense.

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

                                 
MR. RIVERA
Case Reviewing Official 

SECTION C – RECOMMENDATION OF THE PRESIDENT, ADRB
I have reviewed the findings of the minority and the majority. I concur with the majority. Accordingly, I direct implementation of the majority recommendation. See Part VIII, Section A, below.
PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 19 March 2004

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: This action entails a restoration of grade to E-4.
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: 2003094229 INDEX NUMBERS: A9236
Date of Review: 040317 A9218
Character of Service: UD A0113
Date of Discharge: 020923
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: GD 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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