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):  020202

3.  Authority for separation:

      a.  Regulation:  Chapter 10, AR 635-200

      b.  Reason:  In Lieu of Trial by Court-Martial

4.  Prior review(s):  Records Review/020619



                         PART III - SERVICE HISTORY

                 SECTION A - Period of Service Under Review

1.    Service data:                              2.  Awards and
    decorations:
                                           ARCOM      ASR
    a.  Period entered for:  4 Years               AAM        OSR
    b.  Entry date:  000225                        GCMDL      NATO Medal
    c.  Age:  33 Years   DOB:  670204              NDSM       KLM (SA)
    d.  Educational level:  14 Years               AFEM       KLM (K
    e.  Aptitude area score:                       NCOPDR-2
          GT:  128
    f.  Length of Service:                     3.  Highest Grade achieved:
          1 Year  11 Months  8 Days                E6


                                               4.  Performance evaluations:

                                                   See OMPF (fiche)

                         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

Other discharge(s):

      Service    From  To    Type Discharge
      USAR  840428     840508     NA
      RA    850509     880525     Honorable
      USAR  880526     891026     Honorable
      USAR  891027     900103     NA
      ADT   900104     900514     Honorable
      USAR  900515     901226     NA
      ADT   901227     910404     Honorable
      USAR  910405     920721     NA
      ARNGUS     920722      941229     General
      USAR  941230     980224     Honorable




                         PART IV - PREHEARING REVIEW

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

      a.  All the specific facts and circumstances leading to the
applicant’s discharge are not contained in the available records.  The
evidence of record shows that on 19 December 2001, the applicant was
charged with conspiring with two junior enlisted soldiers to make a false
official statement regarding the accountability of sensitive military items
(15 October 2001); derelict in the performance of his duties by willfully
failing to stay with his military vehicle when he was left to guard it (15
October 2001); derelict in the performance of his duties in that upon
discovering the loss of sensitive items belonging to a soldier under his
leadership, he willfully failed to immediately report the loss to his chain
of command (15-16 October 2001); and with intent to deceive, made a false
official statement to a member of the military police concerning the lost
sensitive military equipment, two specifications (17 October 2001).  The
applicant’s voluntarily request for discharge in lieu of court-martial is
not in the available records.  The unit and intermediate commander
recommended approval of an under other than honorable conditions discharge.
 On 8 January 2002, the separation authority approved the discharge with an
under other than honorable conditions discharge.  The record contains a
properly constituted DD Form 214 (Certificate of Release or Discharge from
Active Duty), authenticated by the applicant’s signature.  His DD Form 214
indicates that he was discharged under the provisions of Chapter 10, AR 635-
200, by reason of 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 court-martial), with a
reentry code of 3.

      b.  On 2 February 2002, the applicant was discharged.  At the time of
discharge, the applicant had completed 1 year, 11 months, and 8 days of
active military service in the period of service under review.  He had a
total of 15 years, 1 month, 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
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 040823, 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:
         (   ) Records review             ( X ) Hearing

      b. Type Held:
         (   )Records review              ( X ) Hearing
                                          (   ) Tender Offer

      c. Review/hearing location and date:  Washington, DC on 7 February
2005.

      d. Appearance by:
         Applicant                 ( X ) Yes   (   ) No
         Counsel                   ( X ) Yes   (   ) No

      e.  Applicant testified:     ( X ) Yes   (   ) No

      f.  Counsel presentation:    ( X ) Yes   (   ) No

      g.  Witness(es) testified:   (   ) Yes   ( X ) No

2.  Exhibit(s) submitted at hearing:  2 Character Reference Letters
                        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:  (1)  The discharge is inequitable.

      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)  The issue is accepted.  The Board carefully examined the
applicant’s record of service during the period of enlistment under review
and heard his testimony.  There was a full consideration of all faithful
and honorable service as well as the alleged infractions of discipline, the
extent thereof, and the seriousness of the offenses.  Notwithstanding the
propriety of the applicant’s administrative separation process, the Board
determined that the outcome of said process yielded an inequitable
discharge.  The applicant and his counsel provided creditable testimony
describing the inconsistencies by command in the enforcement of command
policies.  The Board was convinced that these inconsistencies by command
tainted the resulting investigation and led command to deal more severely
with the applicant than others involved in the misconduct.  Further, the
Board was convinced that the applicant’s apprehension about getting a fair
and just trial led to his requesting discharge in lieu of trial by court-
martial.  The Board also noted that the incidents resulting in the
applicant’s separation are an aberration in the overall length and quality
of his more than 15 years of military service.  Accordingly, the Board
voted to grant full relief in the form of an upgrade of characterization of
service to fully honorable and a change to the narrative reason for
separation to Secretarial Authority.  This action entails a restoration of
grade to E6 and a change to the reentry eligibility (RE) code to RE-1.

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
           Honorable.
      ( X ) Inequitable as to reason.  Change reason to Secretarial
           Authority
            under Chapter 5, AR 635-200.
      (   ) 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       5         0
    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:  11 February 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
                  Honorable.
           ( X ) Change reason and authority for discharge to
            Secretarial Authority, AR 635-200.
           ( X ) Other (see remarks below).

Remarks:  This action entails a restoration of grade to E6 and a change to
          the RE code to “1.”

                          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:  20040007455                   INDEX NUMBERS:  A9412
Date of Review:  050207                                   A9218
Character of Service:  UD                                 A1200
Date of Discharge:  020202
Authority:  AR 635-200 C10
Reason:  A7000
Results of Board Action/
Vote/Affirmation:  HD 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