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):  030730

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:
                                           NDSM
    a.  Period entered for:  3 Years               ASR
    b.  Entry date:  010316
    c.  Age:  19 Years   DOB:  810615
    d.  Educational level:  HS Grad
    e.  Aptitude area score:
          GT:  94                                3.  Highest grade
achieved:
    f.  Length of Service:                         E3
          2 Years  4 Months  15 Days

                                               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.  The evidence of record shows that on 22 May 2003, the applicant
was charged with unlawfully assaulting a WO1 by pushing him in the body
with his hands (24 March 2003); willfully disobeying a lawful order from a
WO1 to either go to work or go to sick call (24 March 2003); and
disrespectful in language and deportment toward a WO1 by saying to him,
“Yes, asshole”, and by extending his middle finger at the WO1 (24 March
2003).  The unit and intermediate commanders reviewed the charges and
recommended trial by BCD Special Court-Martial.  On 7 July 2003, the Staff
Judge Advocate (SJA) reviewed the charges and recommended trial by Special
Court-Martial.  The GCMCA approved the SJA’s recommendation.  On 9 July
2003, 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 a lesser included offense.  Further, the applicant
indicated that he understood that he could receive an under other than
honorable conditions discharge and that the discharge would have a
significant effect on eligibility for veteran’s benefits.  The applicant
submitted a statement in his own behalf with his request.  On 23 July 2003,
the separation authority approved the discharge with an under other than
honorable conditions discharge and reduction to the lowest enlisted grade.


      b.  On 30 July 2003, the applicant was discharged.  At the time of
discharge, the applicant had completed 2 years, 4 months, and 15 days of
active military service in the period under review.

      c.  Evidence of record contains Military Police Report #00591-2003-
MPC056 concerning the applicant’s physical and verbal incidents against a
WO1.

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 040527, with one (1) enclosure.
      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 19 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:
          ( 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.

        (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.  See response to
issue (2) below.

        (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 overall length and quality of his
service, the nature of the offenses, and the applicant’s diagnosed
Attention Deficit Hyperactivity Disorder (ADHD) mitigated the applicant’s
misconduct.  Accordingly, the Board voted to grant partial relief in the
form of a change to the characterization of service to general, under
honorable conditions.  The Board was satisfied that the reason for
discharge was both proper and equitable, and voted not to change it.

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       5         0

        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

TO: ARBA Support Division-St Louis      Date:  21 January 2005

     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 PFC/E3.

                          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:  20040002089                   INDEX NUMBERS:  A9406
Date of Review:  050119                                   A9324
Character of Service:  UD                                 A9218
Date of Discharge:  030730                                A0113
Authority:  AR 635-200 C10
Reason:  A7000
Results of Board Action/
Vote/Affirmation:  GD 4-1 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