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):  001129

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:
                                           AAM
    a.  Period entered for:  NIF                   GCMDL
    b.  Entry date:  890830                        ASR
    c.  Age:  18 Years   DOB:  710809
    d.  Educational level:  HS Grad
    e.  Aptitude area score:
          GT:  109                               3.  Highest grade
achieved:
    f.  Length of Service:                         E4
          4 Years  3 Months  20 Days

                                               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         930813-000616

      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.  The specific facts and circumstances leading to the applicant’s
discharge are not in the available records.  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 AWOL from 13 August 1993 – 16
June 2000.  On 28 July 2000, he was placed on excess leave.  The record
indicates the applicant was discharged under the provisions of Chapter 10,
AR 635-200, in lieu of court-martial, with a characterization of service of
under other than honorable conditions.  His DD Form 214 reflects a
separation code of KFS, and an RE Code of 4.

      b.  On 29 November 2000, the applicant was discharged.  At the time
of discharge, the applicant had completed 4 years, 3 month, and 20 days of
active military service (which included 125 days of excess leave), and
accrued 6 years, 10 months, and 4 days of lost time in the period under
review.

      c.  On the contrary, the evidence provided by the applicant shows
that on 27 August 1993, he was released from active duty and transferred to
the USAR Control Group, St Louis, MO, by reason of expiration term of
service (ETS).  The applicant provided supporting evidence showing that he
received his DD Form 214 for ETS, his ETS orders, and his approved DA Form
31 (Request and Authority for Leave) beginning on 29 July 1993.  On 21
October 1994, the applicant requested transfer into a TPU of the Selected
Reserve.  By official orders, on 8 January 1996 he was voluntarily released
from the USAR Control Group and assigned to the 257th TC Co, Las Vegas, NV.
 On 1 November 1996, the applicant was reassigned back to the USAR Control
Group by reason of unsatisfactory participation.

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 conditions 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 031001, with 43 (forth-three) enclosures.
      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 21 July 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 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 applicant’s record is void of the
specific facts and circumstances (i.e., the discharge packet) concerning
the events that led to a discharge from the Army.  However, the applicant’s
record contains a properly constituted DD Form 214 (Certificate of Release
or Discharge from Active Duty), which identifies the reason and
characterization of the discharge and the Board presumed Government
regularity in the discharge process.  The evidence of record shows the
applicant was discharged under the provisions of Chapter 10, AR 635-200,
for the good of the service 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.  In doing so, the applicant admitted guilt to the stipulated or
lesser-included offenses under the UCMJ.  Notwithstanding the documents and
allegations now provided by the applicant, the Board presumes that these
same documents and allegations were properly considered at the time that
his Chapter 10 separation was being adjudicated.  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.  See Paragraph 3, below.

      b.  Equity:      The applicant has not submitted an issue of equity
                   and the ADRB has not otherwise relied upon an issue of
                   equity to change the discharge.  The major factors upon
                   which the discharge was based are set forth in Parts III
                   and IV of this decisional document.

3.  Response(s) to item(s) not addressed as decisional issue(s):  Not
having all the facts and circumstances pertaining to the discharge under
review the Board presumed administrative regularity in the discharge
process.  This Board is only empowered to adjudicate the characterization
of service and the narrative reason for separation.  The Board recommends
that the applicant pursue his request for upgrade with the Army Board for
Correction of Military Records (ABCMR) using the DD Form 149 accompanying
this response.

                           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       2         3
    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. RIVERA
Case Reviewing Official

                     PART VIII - DIRECTIVE/CERTIFICATION
                            SECTION A - DIRECTIVE

                                    NONE

                          SECTION B - CERTIFICATION

Approval Authority:


ROBERT L. HOUSE
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:  2003097117                    INDEX NUMBERS:  A0143
Date of Review:  040721                                   A0113
Character of Service:  UD                                 A9235
Date of Discharge:  001129
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