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):  950719

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:
                                           NONE
    a.  Period entered for:  4 Years
    b.  Entry date:  950111
    c.  Age:  22 Years   DOB:  721008
    d.  Educational level:  HS Grad
    e.  Aptitude area score:
          GT:  117                               3.  Highest grade
achieved:
    f.  Length of Service:                         E1
          0 Years  6 Months  9 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         950130-950513

      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 30 January 1995, the
applicant was reported absent without leave (AWOL).  He was dropped from
the rolls (DFR) on 1 March 1995.  On 13 May 1995, the applicant surrendered
to the military authorities at the Presidio of San Francisco, CA and
transferred to the Personnel Control Facility, Fort Sill, OK for further
processing.  On 17 May 1995, court-martial charges were preferred against
the applicant for the AWOL period of 30 January – 13 May 1995.  On 18 May
1995, 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
declined the opportunity to submit a statement in his own behalf and
present evidence in mitigation of his AWOL.  The applicant also requested
to be placed on indefinite excess leave pending completion of his
administrative discharge proceeding under Chapter 10, AR 635-200.  His
request was approved and he was placed on excess leave status, effective 19
May 1995.  On 15 June 1995, the unit commander recommended approval of an
under other than honorable conditions discharge.  On 20 June 1995, the
proper legal authority reviewed the applicant’s request for discharge and
determined there were no legal objections for further processing.  On 21
June 1995, the separation authority approved the discharge with an under
other than honorable conditions discharge.

      b.  On 19 July 1995, the applicant was discharged.  At the time of
discharge, the applicant had completed 6 months and 9 days of active
military service (which included 62 days of excess leave) and accrued 103
days of lost time in the period under review.

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 031215, with three (3) 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 8 September
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:
          ( X )  Additional issue(s) identified during review/hearing as
              follows:

        Board Issue:  (5)  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.

        (5)  The issue is accepted.  The Board carefully examined the
applicant’s record of service during the period of enlistment under review.
 The Board does not condone the applicant’s misconduct; however, determined
that the characterization of service is now inequitable.  Notwithstanding
the propriety of the applicant’s discharge, the Board noted that because
the applicant was in an entry-level status, the approving authority had two
options as to characterization of service.  One option was to characterize
the applicant’s service as under other than honorable conditions and the
other was not to characterize the applicant’s service.  In view of the
applicant’s post-service accomplishments and the fact that he was in an
entry-level status at time of initiation of his separation, the Board
determined that it would be more equitable to uncharacterize the
applicant’s service.  Accordingly, the Board voted to grant partial relief
by changing the characterization of service to uncharacterized.  However,
the Board found that the reason for discharge was both proper and equitable
and voted not to change it.

        (1), (2), and (4)  The issues are rejected.  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 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 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

        (3)  The issue is rejected.  The Board may only change the
characterization or reason for discharge.  If the applicant desires to
reenlist, he should contact the local recruiter to determine his
eligibility to reenlist.  Those individuals can best advise a former
service member as to the needs of the Army at the time, and are required to
process waivers of RE codes.

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
           Uncharacterized.
      (   ) 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:  10 September 2004

     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 Uncharacterized.
           ( X ) Other (see remarks below).

Remarks:  This action does not entail a restoration of grade.

                          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:  2004100999                    INDEX NUMBERS:  A9406
Date of Review:  040908                                   A9222
Character of Service:  UD                                 A9445
Date of Discharge:  950719                                A0113
Authority:  AR 635-200 C10
Reason:  A7100
Results of Board Action/
Vote/Affirmation:  EL 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