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): 030123
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: 3 Years
b. Entry date: 001019
c. Age: 18 Years DOB: 820728
d. Educational level: HS Grad
e. Aptitude area score:
GT: 94 3. Highest grade
achieved:
f. Length of Service: E2
2 Years 3 Months 5 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 021202-021203
Mil conf
Civil conf
Other
6. Nonjudicial punishment:
Date Offense(s)
020827 Without authority, failed to go at the time prescribed to
his appointed place of duty, six (6) specifications
(NIF)(Company Grade)
021007 Without authority, failed to go at the time prescribed to
his appointed place of duty, six (6) specifications
(NIF)(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
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 12 December 2002, the
applicant was charged with failing to go at the time prescribed to his
appointed place of duty, 0700 work call formation (between 18 October – 4
December 2002); failing to go at the time prescribed to his appointed place
of duty, 1600 physical fitness training formation (between 18 October – 4
December 2002); AWOL (2-3 December 2002); and willfully disobeying a lawful
command from a CPT to remain within the battalion area (6 November 2002).
On 13 December 2002, 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. The unit and
intermediate commanders’ recommendations are not in the available records.
However, on 16 December 2002,the trial counsel submitted a memorandum
stating that he personally briefed the commanders on the facts and
circumstances of the applicant’s pending court-martial. He confirmed that
the subordinate commanders recommended that the applicant’s discharge be
characterized as under other than honorable conditions. On 18 December
2002, the separation authority approved the discharge with an under other
than honorable conditions discharge.
b. On 18 December 2002, the applicant was discharged. At the time
of discharge, the applicant had completed 2 years, 3 months, and 5 days of
active military service 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 031119, with two (2) 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:
( X ) Additional issue(s) identified during review/hearing as
follows:
Board Issue: (2) 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.
(2) The issue is accepted. 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 does not condone the applicant’s
infractions of discipline; however, determined that the characterization of
service is inequitable. Notwithstanding the propriety of the applicant’s
discharge, the Board found that the nature of the applicant’s infractions
of discipline did not merit issuance of a characterization of service of
under other than honorable conditions. Accordingly, the Board voted to
grant partial relief in the form of an upgrade of characterization of
service to general, under honorable conditions. The Board determined that
the reason for discharge was both proper and equitable and voted not to
change it.
(1) The issue is rejected. Changes to reentry eligibility (RE)
codes do not fall within the purview of this Board. The evidence of record
shows that at the time of separation the applicant was assigned an RE code
of “4.” An RE-4 indicates that the applicant was discharged with a
disqualification that cannot be waived and that he is no longer eligible to
reenlist. If the applicant still believes there is an error or injustice
in his RE code, he may make application to the Army Board for Correction of
Military Records, utilizing a DD Form l49, which is enclosed with this
response.
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
General, Under Honorable Conditions.
( ) 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: 8 October 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 General, Under
Honorable Conditions.
( 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: 2004103382 INDEX NUMBERS: A9406
Date of Review: 041006 A9218
Character of Service: UD A9445
Date of Discharge: 030123 A0113
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: GD 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
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