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):  940804

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:  4 Years               ASR
    b.  Entry date:  930319
    c.  Age:  19 Years   DOB:  730526
    d.  Educational level:  HS Grad
    e.  Aptitude area score:
          GT:  102                               3.  Highest grade
achieved:
    f.  Length of Service:                         E2
          1 Year  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:

    Status       Inclusive dates
      AWOL         940509-940510
                 940511-940618
                 940217-940223


      Mil conf     940618-940619

      Civil conf

      Other


6.  Nonjudicial punishment:

      Date  Offense(s)
      940225     Wrongfully possessed a controlled substance, hashish
             (931215)(Field Grade)


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  920330     920429     NA
      ADT   920430     921031     Honorable
      USAR  921101     930318     NA




                         PART IV - PREHEARING REVIEW

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

      a.  The evidence of record shows that on 20 June 1994, the applicant
was charged with three specifications of AWOL (17-23 February 1994, 9-10
May 1994, and 11 May – 18 June 1994); two specifications of without
authority, failing to go at the time prescribed to his appointed place of
duty (3 and 4 May 1994); two specification of willfully violating a lawful
general regulation by wrongfully storing his non-operational vehicle on
post (23 December 1993) and wrongfully carrying a knife with a locking
blade longer than three inches (23 February 1994); stealing a JC Penney,
Sears, and MCI credit card, of some value, the property of a SPC (2 January
1994); wrongfully and unlawfully making a false sworn statement (23
February 1994), and breaking restriction (16 April 1994).  On 22 June 1994,
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; however, his statement is not
contained in the available records.  The unit and intermediate commanders
recommended approval of an under other than honorable conditions discharge.
 On 8 July 1994, the separation authority approved the discharge with an
under other than honorable conditions discharge.

      b.  On 4 August 1994, the applicant was discharged.  At the time of
discharge, the applicant had completed 1 year, 4 months, and 15 days of
active military service and accrued 48 days of lost time in the period
under review.  He had a total of 2 years, 4 months, and 5 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 031111, with seven (7) 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 25 August
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 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 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 evidence of record does not support the
applicant’s contentions and the applicant has provided no independent
corroborating evidence in support of his contentions.  The Board found no
evidence of arbitrary or capricious action on the part of the applicant’s
chain of command.  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.  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.

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       1         4

        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:  2004100231                    INDEX NUMBERS:  A9411
Date of Review:  040825                                   A9217
Character of Service:  UD                                 A0113
Date of Discharge:  940804
Authority:  AR 635-200 C10
Reason:  A7000
Results of Board Action/
Vote/Affirmation:  NC 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