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):  021031

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:
                                           ARCAM
    a.  Period entered for:  NIF                   ASR
    b.  Entry date:  011009
    c.  Age:  46 Years   DOB:  550405
    d.  Educational level:  HS Grad
    e.  Aptitude area score:
          GT:  NIF                               3.  Highest grade
achieved:
    f.  Length of Service:                         E2
          0 Years  7 Months  1 Day

                                               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         020329-020915

      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

Other discharge(s):

      Service    From  To    Type Discharge
      ARNGUS (ADT)     760815     761218     Honorable
      ARNGUS     761219      771014     Honorable
      ARNGUS     771015      821014     Honorable
      ARNGUS     821216      851129     General
      USAR  851130     880824     Honorable
      (This section is incomplete due to insufficient data/documents in the
available records.)




                         PART IV - PREHEARING REVIEW

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

      a.  The specific facts and circumstances (i.e. separation packet)
leading to the applicant’s discharge are not contained in the available
records.  Evidence of records shows that the applicant, a member of the
California Army National Guard, was ordered to active duty on 9 October
2001 in support of Operation Noble Eagle.  The record contains a properly
constituted DD Form 214 (Certificate of Release or Discharge from Active
Duty), which was authenticated by the applicant’s signature.  His DD Form
214 indicates that he 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.  Furthermore, the DD Form 214 shows
a Separation Code of KFS (i.e., in lieu of trial court-martial), with a
reentry code of 3.

      b.  On 31 October 2001, the applicant was discharged.  At the time of
discharge, the applicant had completed 7 months and 1 day of active
military service and accrued 170 days of lost time in the period of service
under review.  There is insufficient data in the available records to
determine the applicant’s total military service.

      c.  Although the specific facts and circumstances are not in the
available records the applicant’s supporting documents include a personal
statement, dated 24 May 2004, in which he states that in April 2002 he did
not return on time and as a result his status became AWOL.  He further
states that since he was coping with an ongoing illness, he stayed away and
decided to deal with the consequences of his actions at a later time.  His
DD Form 214 also shows that he accrued lost time during the period 29 March
– 15 September 2002.

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 040618, 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 9 February
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     (   ) 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 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 was authenticated by the applicant’s signature.  This
document 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, 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.  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 noted the applicant’s
contentions; however, did not find said contentions sufficiently mitigating
to overcome its presumption of regularity in the applicant’s discharge.
The Board, being convinced that the reason for discharge and the
characterization of service were both proper and equitable, voted to deny
relief.

      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 document.

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:  20040003009                   INDEX NUMBERS:  A0143
Date of Review:  050209                                   A9235
Character of Service:  UD                                 A9321
Date of Discharge:  021031
Authority:  AR 635-200 C10
Reason:  A7100
Results of Board Action/
Vote/Affirmation:  NC 5-0 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