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):  021031

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:  NIF
    b.  Entry date:  990722
    c.  Age:  22 Years   DOB:  761109


    d.  Educational level:  HS Grad


    e.  Aptitude area score:
          GT:  81                                3.  Highest grade
achieved:
    f.  Length of Service:                         E3
          1 Year  11 Month(s)  8 Day(s)

                                               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         010203-010313; 020417-020418; 020422-021031

      Mil conf

      Civil conf   010314-011115


      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 specific facts and circumstances pertaining to the
applicant’s discharge are not contained in the available records.  The
record contains a properly constituted DD Form 214 (Certificate of Release
or Discharge from Active Duty).  His DD Form 214 indicates that he was
discharged under the provisions of Chapter 10, AR 635-200 by reason of for
the good of the service-in lieu of trial by court-martial, with a
characterization of service of under other than honorable conditions.

      b.  On 31 October 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 and accrued 485 days of lost time due to AWOL and
incarceration in the period under review.

      c.  Evidence developed from alternate sources (ABCMR Record of
Proceedings, dated 19 February 2004) reveals that the applicant departed
Fort Lewis, Washington, without leave for Haiti on 3 February 2001.  He
next appeared in Los Angeles, California, where he was apparently involved
in an auto accident sustaining a concussion.  In addition, he became
disorganized and psychotic.  After wandering the streets nude and carrying
a weapon, he was arrested for pointing the weapon at a busload of children.
 The local court directed he be hospitalized and given a psychiatric
examination (during April-May 2001.)  He was treated with antipsychotic
medicine, and subsequently convicted of pointing a weapon at a school bus.
He was sentenced to the LA County Jail and in November 2001, he was
released and returned to military control at Fort Lewis.

      d.  After his return to Fort Lewis, he was suspected of having taken
a weapon and hidden it.  After an unsuccessful search, amnesty was offered
to anyone turning in the weapon.  The applicant turned in the weapon in
early December 2001 stating that he had found it.  In late December 2001,
he applicant was arrested for shoplifting and during his confinement showed
symptoms of his previous psychotic behavior.  He was charged with
shoplifting and desertion; however, since he was declared incompetent to
stand trial, the Convening Authority, Fort Lewis, referred the applicant to
the U.S. Medical Center for Federal Prisons for evaluation and treatment.

      e.  The applicant underwent evaluation from 29 June – 16 October
2002.  The reviewing psychologist found that the applicant did not exhibit
any evidence of mental disorder or manifest any signs of a psychosis.  He
opined that a prior diagnosis of paranoid schizophrenia was most likely
either a false presentation on the part of the applicant or a transient
psychotic illness more consistent with substance intoxication or related to
a concussion.

      f.  At some point following his civilian arrest, the applicant’s
status was reviewed by the Department of Justice, Immigration and
Naturalization Services (INS).  He was originally ordered deported on 12
February 2003 by an Immigrations Judge; however, since his civilian
sentence was reduced to less than one year, he was afforded an appeal of
the deportation order.  On appeal the deportation order was canceled since
the INS was given the impression that the applicant was still an active
U.S. military serviceman and that the military was willing to take him back
into active duty.  The final action on this appeal was not of record.
However, the Board did note that the applicant was detained at the Eloy
Immigration Detention Center in Arizona during 2004.

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
UOHC 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 030805, with multiple enclosure(s).
      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, D.C. 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.  All the specific facts and
circumstances regarding the applicant’s separation from the Army are not in
the official record.  There is sufficient evidence to show that the
applicant was charged with  shoplifting and desertion, offenses punishable
under the Uniform Code of Military Justice (UCMJ) with a punitive
discharge.  The Board noted that the applicant’s record contains a properly
constituted DD Form 214 (Certificate of Release or Discharge from Active
Duty).  This document identifies the reason and characterization of the
discharge and the Board presumed Government regularity in the discharge
process.  The evidence of record shows the applicant was discharged under
the provisions of Chapter 10, AR 635-200, for the good of the service in
lieu of trial by court-martial.  Procedurally, subsequent to receiving the
charges, the applicant would have been required to consult with defense
counsel and to voluntarily, and in writing, request 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.  In the absence of information to the contrary, 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 would have been aware of that prior to requesting discharge.  An
RE Code of 3 indicates that the applicant requires a waiver prior to being
allowed to reenlist.  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

                          
Ms. McKim-Spilker
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:  2004103422                    INDEX NUMBERS:  A9405
Date of Review:  041006                                   A9231
Character of Service:  UD                                 A0101
Date of Discharge:  021031
Authority:  AR 635-200 C10
Reason:  A7000
Results of Board Action/
Vote/Affirmation:  NC 5-0 A













                           PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC
UNCHAR

    1. LTC PROCTOR, ESMERALDA G.  Mbr          X                 X       

    2.      Mbr          X                 X       

    3.      Mbr          X                 X       

    4.      Mbr          X                 X       

    5.      PO           X                 X