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):  031230

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:
                                           ARCAM
    a.  Period entered for:  NIF*                  NDSM (2)
    b.  Entry date:  030212                        AFRM w/M Dev
    c.  Age:  17 Years   DOB:  811003              ASR
    d.  Educational level:  15 Years               C/Ach
    e.  Aptitude area score:
          GT:  115                               3.  Highest grade
achieved:
    f.  Length of Service:                         E4
          0 Years  10 Months  19 Days

                                               4.  Performance evaluations:

                                                   NONE

*Applicant a member of the USAR ordered to active duty for operations Noble
Eagle/Enduring Freedom.
                         PART III - SERVICE HISTORY
           SECTION A - Period of Service Under Review - Continued

5.  Periods of unauthorized absence:  NONE

    Status       Inclusive dates
      AWOL

      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

Other discharge(s):

      Service    From  To    Type Discharge
      USAR  981221     000604     NA
      ADT   000605     000720     Uncharacterized
      USAR  000721     030211     NA
        (Concurrent Service)




                         PART IV - PREHEARING REVIEW

                       SECTION A-ANALYST’S ASSESSMENT
l.  Facts and Circumstances:

      a.  The applicant enlisted in the U.S. Army Reserves on 21 December
1998 for a period of 8 years.  On 30 December 2003, he was ordered to
active duty for Operations Noble Eagle/Enduring Freedom as a mobilization
asset with the 489th Engineering Battalion (Fallujah, Iraq).  While on
active duty, the applicant voluntarily requested discharge under the
provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.
The specific facts and circumstances leading to the applicant’s discharge
are not contained in the available records.  Evidence of record shows that
on 23 December 2003, DA, HQ, III Corps, Fort Hood, Texas, Orders 357-0206
discharged the applicant from the United States Army Reserve, effective 30
December 2003.  The record contains a properly constituted DD Form 214
(Certificate of Release or Discharge from Active Duty), which was
authenticated by the applicant’s signature.  His DD Form 214 indicates 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, and a
reentry code of 4.  The specific facts and circumstances leading to the
applicant’s discharge are not contained in the available records.

      b.  On 30 December 2003, the applicant was discharged.  At the time
of discharge, the applicant had completed 10 months and 19 days of active
military service in the period under review and had a total of 5 years and
10 days of total military service.

      c.  Although the specific facts and circumstances leading to the
applicant’s discharge are not in the available records, the applicant
indicates he received a Summary Court-Martial for missing movement from
Kuwait to Iraq during his deployment for Operation Enduring Freedom.  He
states that the confusion was due to his assignment to another unit (the
489th Engineer Battalion) for mobilization purposes and he missed the pick-
up rendevous in Kuwait.  The applicant record also contains two letters
from senior leadership on behalf of the applicant.  One letter indicates he
was one of three soldiers left behind in Kuwait with little or no contact
with their leadership and that they were not welcomed in the unit since
they were fillers; and, the second letter indicates that the soldiers
assigned to the 489th for mobilization purposes experienced hardships and
experienced problems with their integration into the new unit.

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 040301, with multiple 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.

        (2)  The issue is rejected.  The applicant’s record is void of
facts and circumstances concerning the events that led to a discharge from
the Army.  The Board noted that the applicant’s record contains a properly
constituted DD Form 214 (Certificate of Release or Discharge from Active
Duty) which was authenticated by the applicant.  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.  In
connection with such a discharge, the applicant was charged with the
commission of an offense punishable under the Uniform Code of Military
Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was
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
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.  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       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

                          
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:  2004105043                    INDEX NUMBERS:  A9217
Date of Review:  041027                                   A0143
Character of Service:  UD
Date of Discharge:  031230
Authority:  AR 635-200 C10
Reason:  A7000
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