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):  990825

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:
			                          GCMDL (3)
a.  Period entered for:  6 Years               NDSM
b.  Entry date:  961022                        NCOPDR-2
c.  Age:  37 Years   DOB:  590903              ASR
d.  Educational level:  13 Years               OSR
e.  Aptitude area score:
	    GT:  104                               3.  Highest grade achieved:
    f.  Length of Service:                         E5
          2 Years  10 Months  4 Days               
                                                   
                                               4.  Performance evaluations:  
                                                   See OMPF Fiche

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:  

	Date 	Offense(s)
	970415	Without authority, fail to go at the time prescribed to his appointed place of duty (970407)(Summarized)

7.  Court-Martial data:  NONE

	a.  SCM:  
		Date		Offense(s)
		980202	Without authority fail to go to his appointed place of duty 
                  (971007); Disrespectful in language and deportment toward a SFC 
                   by yelling and pointing his finger at him (971007); Failure to 
                   obey a lawful order by a 1LT (970730)

	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
	RA	880104	930624	Honorable
	RA	930625	961021	Honorable

PART IV - PREHEARING REVIEW

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

	a.  All the facts and circumstances pertaining to the applicant’s discharge process are not in the available records.  The available evidence of record shows that the applicant was charged with one specification of absent without authority (11-12 August 1999); one specification of false official statement (12 August 1999); two specifications of use of cocaine (1 June 1999)(10-12 August 1999); two specifications of communicating a threat (13 August 1999)(13-15 August 1999).  The applicant’s voluntary request for discharge is not contained in the available records.  On 20 August 1999, the unit commander recommended approval of the discharge action with a characterization of under other than honorable conditions.  The intermediate commanders recommended approval with a characterization of service of under other than honorable conditions.  On 20 August 1999, the separation authority approved the discharge with an under other than honorable conditions discharge.  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, a separation code of KFS, and an RE code of 3.  

	b.  On 25 August 1999, the applicant was discharged.  At the time of discharge, the applicant had completed 2 years, 10 months, and 4 days of active military service in the period under review and had a total of 11 years, 7 months and 22 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 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 030318, with six (6) 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:
	   (   ) Records review             ( X ) Hearing

	b. Type Held:
	   (   )Records review              ( X ) Hearing
	                                    (   ) Tender Offer

	c. Review/hearing location and date:  Dallas, TX on 23 March 2004.

	d. Appearance by:
	   Applicant                 ( X ) Yes   (   ) No
	   Counsel                   ( X ) Yes   (   ) No

	e.  Applicant testified:     ( X ) Yes   (   ) No
	
	f.  Counsel presentation:    ( X ) Yes   (   ) No
	
	g.  Witness(es) testified:   (   ) Yes   ( X ) No
	                                                
2.  Exhibit(s) submitted at hearing:  62 documents.

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 available records for the period of enlistment under review and heard his testimony.  The Board does not condone the applicant’s misconduct; however, determined that the characterization of service is now inequitable.  The Board based the foregoing determination on the applicant’s convincing testimony in regards to the credibility of the results from his urinalysis test; the overall length and quality of his service; and his post-service accomplishments.  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.  Notwithstanding Board’s decision to grant partial relief, the applicant, by his misconduct and poor duty performance diminished the quality of his service below that meriting a fully honorable discharge.  See response to issue (2) above.

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       3         2   

	  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
                  1941 Jefferson Davis Highway, 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:  2 April 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 entails a restoration of grade to E-4.

SECTION B - CERTIFICATION

Approval Authority:

SPURGEON A. MOORE
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:  2003087470                    INDEX NUMBERS:  A9236
Date of Review:  040323                                   A9218
Character of Service:  UD                                 A9222
Date of Discharge:  990825                                A0113
Authority:  AR 635-200 C10                                
Reason:  A7000                                            
Results of Board Action/                                  
Vote/Affirmation:  GD 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