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):  010518

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:
                                           ARCOM       AFRM
    a.  Period entered for:  6 Years               AAM (2)     NCOPDR-2
    b.  Entry date:  990208                        GCMDL (2)   ASR
    c.  Age:  35 Years   DOB:  631101              ARCAM
    d.  Educational level:  GED                    NDSM
    e.  Aptitude area score:
          GT:  85                                3.  Highest grade
achieved:
    f.  Length of Service:                         E7
          1 Year  8 Months  11 Days

                                               4.  Performance evaluations:

                                                   See OMPF/Fiche

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

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL         001005-001009
                 001023-001028

      Mil conf

      Civil conf   001029-010518

      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
      USAR  830514     830804     NA
      ADT   830805     831111     Uncharacterized
      USAR  831112     900927     NA
      AGR   900928     990207     Honorable
      (Concurrent Service)




                         PART IV - PREHEARING REVIEW

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

      a.  All the facts and circumstances pertaining to the applicant’s
discharge are not contained in the available records.  The record contains
a memorandum by the Staff Judge Advocate, dated 20 April 2001, concerning
the applicant’s request for discharge in lieu of trial by court-martial,
which is not in the available records.  It indicates that on 29 June 2000,
the applicant was charged with three (3) specifications of stealing
military property of the U.S. Government, one (1) specification of making a
false official statement, one specification (1) of fraud against the United
States, and one (1) specification of forgery.  It also indicates that the
unit and intermediate commander recommended approval of the applicant’s
request.  On 20 April 2001, the separation authority approved the discharge
with an under other than honorable conditions discharge and reduction to
Private E-1.  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 from active duty under the provisions of
Chapter 10, AR 635-200 by reason in lieu of trial by court-martial, with a
characterization of service of under other than honorable conditions.

      b.  On 18 May 2001, the applicant was discharged.  At the time of
discharge, the applicant had completed 1 year, 8 months, and 11 days of
active military service and accrued 210 days of lost time (9 days of AWOL
and 201 days of civil confinement) in the period under review.  He had a
total of 17 years, 11 months, and 24 days of total 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 040322, with multiple 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 12 January
2005.

      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     ( 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.

        (1-5), (8), (14-18), and (22-24)  The issues are rejected.  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 noted
the applicant’s contentions; however, did not find said contentions
sufficiently mitigating to warrant an upgrade of the discharge under
review.  The Board found no evidence of arbitrary or capricious action on
the part of the applicant’s chain of command.  Contrary to the applicant’s
contentions, the Board found sufficient evidence of serious misconduct in
the applicant’s record to support the separation action under review.  The
evidence of record shows the applicant was charged with the commission of
offenses punishable under the Uniform Code of Military Justice (UCMJ) with
a punitive discharge.  Procedurally, 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.  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 was 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.

        (6) and (7)  The issues are rejected.  The matters addressed in
these issues do not fall within the purview of the Army Discharge Review
Board.

        (9-13), and (19-21)  The issues are rejected.  The issues raise no
element of fact, law, procedure or discretion pertaining to the applicant’s
discharge process.

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
                  1901 South Bell Street, 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:  20040001611                   INDEX NUMBERS:  A9235
Date of Review:  050112                                   A9217
Character of Service:  UD                                 A9307
Date of Discharge:  010518                                A9309
Authority:  AR 635-200 C18                                A9321
Reason:  A7000                                            A9447
Results of Board Action/                                  A9445
Vote/Affirmation:  NC 5-0 A                               A0113













                           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