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):  000807

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:
                                           ASR
    a.  Period entered for:  2 Years  16 Weeks
    b.  Entry date:  980701
    c.  Age:  18 Years   DOB:  800329
    d.  Educational level:  HS Grad
    e.  Aptitude area score:
          GT:  113                               3.  Highest grade
achieved:
    f.  Length of Service:                         E2
          1 Year  00 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         990127-000213

      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 the applicant was reported
AWOL, effective 27 January 1999 and DFR’d on 26 February 1999.  On 13
February 2000, the applicant was apprehended by the civil authorities at El
Paso, TX and was returned to military control at Fort Bliss, TX.  He was
then transferred to the Personnel Control Facility at Fort Sill, OK for
further processing.  On 15 February 2000, the applicant was charged with
AWOL from 27 January 1999 – 13 February 2000.  On 17 February 2000, 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
did not submit a statement in his own behalf.  On 18 February 2000, the
applicant was placed on excess leave pending completion of his
administrative discharge proceeding under Chapter 10, AR 635-200.  On 28
June 2000, the unit commander recommended approval of an under other than
honorable conditions discharge.  On 19 July 2000, the proper legal
authority reviewed the applicant’s request for discharge and found no legal
objections to further processing.  On 20 July 2000, the separation
authority approved the discharge with an under other than honorable
conditions discharge and reduction to Private E-1.

      b.  On 7 August 2000, the applicant was discharged.  At the time of
discharge, the applicant had completed 1 year and 15 days of active
military service (which included 172 days of excess leave), and accrued 332
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 040127, with four (4) 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 6 October
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 Board noted the applicant’s contentions;
however, determined that the applicant had many legitimate avenues through
which to obtain assistance or relief, without committing the misconduct,
which led to the separation action 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 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       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:  2004103027                    INDEX NUMBERS:  A9235
Date of Review:  041006                                   A9307
Character of Service:  UD                                 A0113
Date of Discharge:  000807
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