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):  030319

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:  3 Years               ASR
    b.  Entry date:  010621
    c.  Age:  19 Years   DOB:  820208
    d.  Educational level:  GED
    e.  Aptitude area score:
          GT:  93                                3.  Highest grade
achieved:
    f.  Length of Service:                         E2
          1 Year  8 Months  29 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         020531-020603
                 020829-020902
                 021024-021113

      Mil conf     030122-030220

      Civil conf

      Other


6.  Nonjudicial punishment:  The actual Article 15s are not in the
available
                             records, but are identified in the unit
                             commander’s separation memorandum and SJA’s
                             brief.

      Date  Offense(s)
      020916     Without authority, failed to go at the time prescribed to
             his appointed place of duty (Company Grade)
      020814     Missing movement (Company Grade)
      020401     Falsified a sick slip (020220)(Company Grade)
___________________________________________
      Memorandum of Reprimand:

      Date  Offense(s)
      020411     Drunk driving; Careless driving (020216)(COL Level)


7.  Court-Martial data:

      a.  SCM:
            Date       Offense(s)
            030122     AWOL (021024-021113); Failure to repair (021021)


      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.  Evidence of record shows that on 27 February 2003, the unit
commander notified the applicant of initiation of separation action under
the provisions of Chapter l4, AR 635-200, by reason of
misconduct—commission of a serious offense, with an under other than
honorable conditions discharge.  The reasons for the proposed action were
for three incidents of AWOL, one incident of leaving his place of duty,
four incidents of failing to be at his appointed place of duty, and one
incident of falsifying a sick slip.  He was advised of his rights.  On On
27 February 2003, the applicant consulted with legal counsel, was advised
of the impact of the discharge action, and did not submit a statement in
his own behalf.  The unit commander subsequently recommended separation
from the service and waiver of further rehabilitative efforts.  The
intermediate commanders reviewed the proposed discharge action and
recommended approval of the separation action with an under other than
honorable conditions discharge.  On 6 March 2003, the proper legal
authorities submitted a brief of the applicant’s separation action for
decision by the CG approval authority.  However, the final decision
memorandum is not in the available records.

      b.  On 19 March 2003, the applicant was discharged.  At the time of
discharge, the applicant had completed 1 year, 8 months, and 29 days of
active military service and accrued 30 days of lost time in the period
under review.

      c.   There is a discrepancy between the applicant’s involuntary
separation action and his DD Form 214 (Certificate of Release or Discharge
from Active Duty).  His separation action was processed under Chapter 14,
AR 635-200, for misconduct-commission of a serious offense, although the
separation packet is absent the approval memorandum by the separation
authority.  However, his DD Form 214, which was authenticated by the
applicant’s signature, erroneously reflects that he was discharged under
the provisions of Chapter 10, AR 635-200 by reason of in lieu of trial by
court-martial, with a characterization of service of under other than
honorable conditions, with a separation code of KFS (i.e. in lieu of trial
by court-martial), and a RE code of 4.

2.  Legal/Regulatory Basis for Separation Action:  Army Regulation 635-200
sets forth the basic authority for the separation of enlisted personnel.
Chapter l4 establishes policy and prescribes procedures for separating
members for misconduct.  Specific categories include minor disciplinary
infractions, a pattern of misconduct, commission of a serious offense, to
include abuse of illegal drugs, convictions by civil authorities and
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impractical or unlikely to succeed.  Army policy states that an under other
than honorable conditions discharge is normally considered appropriate, but
a general discharge under honorable conditions or an honorable discharge
may be granted.


                      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 040215, with no 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 27 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.

        (1-4)  The issues are 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.  Further, the Board
found no evidence of arbitrary or capricious action on the part of the
applicant’s chain of command.  The Board determined that the applicant's
discharge was appropriate because the quality of his service was not
consistent with the Army's standards for acceptable personal conduct and
performance of duty by military personnel.  By his misconduct and poor duty
performance, the applicant diminished the quality of his service below that
meriting a fully honorable or general discharge.  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.  The
Board, being convinced that the reason for discharge and the
characterization of service were both proper and equitable, voted to deny
relief.  Notwithstanding the propriety and equity of the separation action,
the Board determined that blocks 25 through 28 of the applicant’s DD Form
214 require administrative correction to reflect the approved separation
action.  Accordingly, the Board will direct ARBA Support St. Louis to
administratively correct blocks 25 through 28 to reflect the following:
(25) Separation Authority “AR 635-200, Chapter 14, Paragraph 14-12c;” (26)
Separation Code “JKQ;” (27) Reentry Code “3;” and (28) Narrative Reason for
Separation “Misconduct.”

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                                 .
      ( X ) Both proper and equitable, but reason for separation cited was
           an administrative/clerical error and should be changed to
           “Misconduct” under “Chapter 14, Paragraph 14-12c, AR 635-200.”

2.  Voting record:      Change   No Change
                  Reason       0         5
    Characterization       2         3

        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:  29 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 ) Other (see remarks below).

Remarks:  Administratively correct blocks 25 through 28 to reflect the
          following:  (25) Separation Authority “AR 635-200, Chapter 14,
          Paragraph 14-12c;” (26) Separation Code “JKQ;” (27) Reentry Code
          “3;” and (28) Narrative Reason for Separation “Misconduct.”

                          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:  2004104455                    INDEX NUMBERS:  A9235
Date of Review:  041027                                   A9217
Character of Service:  UD                                 A9411
Date of Discharge:  030319                                A0113
Authority:  AR 635-200 C14
Reason:  A6730
Results of Board Action/
Vote/Affirmation:  NC 3-2 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