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):  030926

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: 6 Years                ASR
    b.  Entry date: 000308
    c.  Age: 17 Years   DOB: 820327


    d.  Educational level:  HS Grad


    e.  Aptitude area score:
          GT: 102                                3.  Highest grade
achieved:
    f.  Length of Service:                         E2
         3 Year(s)  6 Month(s)  19 Day(s)

                                               4.  Performance evaluations:

                                                   NONE

                         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:

      a.  SCM:
            Date   Offense(s)
        021200 disrespectful in language towards a non-commissioned officer
              and assaulting a non-commissioned officer.

      b.  SPCM:
            Date   Offense(s)


      c.  GCM:
            Date   Offense(s)


8.    Remarks:  The creditable service on the DD Form 214, item 12c is
             incorrect, should be: 3 years, 6 months and 19 days.
             Enlistment date on DD Form 214, item 12a is incorrect.


                       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 14 August 2003, the
applicant was charged with disobeying a lawful order from a SGT (030722)
and was disrespectful in deportment towards a SGT (030721).  On 15 August
2003, 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 commander and
intermediate commanders recommended approval of an under other than
honorable conditions discharge.  On 28 August 2003, the separation
authority approved the discharge with an under other than honorable
conditions discharge.  The applicant was to be reduced to the lowest
enlisted rank.

      b.  On 26 September 2003, the applicant was discharged.  At the time
of discharge, the applicant had completed 3 years, 6 months, and 19 days of
active military service.

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 040325, with fifteen (15) 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, DC on 17 November
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, did not find said contentions sufficiently mitigating to warrant
an upgrade of the discharge 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       1         4

        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. RON WILLIAMS
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:  2004106402                    INDEX NUMBERS:  A9217
Date of Review:  041117                                   A0100
Character of Service:  UD
Date of Discharge:  030926
Authority:  AR 635-200 C10
Reason:  A7000
Results of Board Action/
Vote/Affirmation:  NC 4-1 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