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ARMY | DRB | CY1997 | 199701540
Original file (199701540.rtf) Auto-classification: Denied

PART II - APPLICATION DATA
(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Type of discharge (or characterization of service): UOHC

2. Date of discharge (or REFRAD): 961127

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         b. Reason: Misconduct
4. Prior review(s): ( X ) NONE
5. Action requested: ( X ) Recharacterization ( ) Change of Reason


PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                           

a. Period entered for: 4 Years (3 Mos Ext) Type
b. Entry date: 930414 (960306) GCMDL
c. Age: 27 Years DOB: 650930 NDSM
d. Educational level: HS Grad ASR
e. Aptitude area scores: ( X ) NIF/NA OSR
          GT: 103 3. Highest grade achieved:
f. Actual creditable service: 3 Years
7 Months 14 Days Grade
E4

4. Performance evaluations:
( X ) NONE


PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence: ( X ) NONE

6. Nonjudicial punishment:
         Date     Offense(s)
         960430   FTG, three specifications (960402)(960409)(960410)(summarized)
          960515   Wrongfully used cocaine between (960319-960322); FTG, two                                   specifications (960501)(960502)
         961015   Wrongfully used marijuana between (960716-960816)
7. Court-Martial data: ( X ) NONE
8.       Remarks: ( X ) NONE
SECTION B - Other Service Data
( X ) NONE


PART IV - PREHEARING REVIEW
SECTION A - Facts and Issues

1. Summary of facts and circumstances concerning discharge:
         960812:  Medical examination cleared applicant for separation.
         960813:  Mental status evaluation cleared applicant for separation.
         960919:  Asst SJA determined separation action to be legally sufficient.
         961015:  Unit commander notified applicant of initiation of separation action              under the provisions of Chapter 14, AR 635-200, for misconduct -                  pattern of misconduct. He was advised of his rights.
         961015:  Unit commander recommended approval with an under other than                       honorable conditions discharge.
         961017:  Applicant acknowledged notification, consulted legal counsel,                      voluntarily waived consideration of his case by an administrative                 separation board contingent upon him receiving a characterization of              service no less favorable than general, and submitted a statement in              his own behalf.
         961030 Applicant waived administrative separation board.
         961101:  Intermediate commander recommended approval with an under other than              honorable conditions discharge.
         961106:  Separation authority approved separation with an under other than                 honorable conditions discharge.
         961127:  Applicant was discharged.

2. Issue(s) of propriety and/or equity on DD Form 293 or incorporated by reference:
          As stated on applicant’s DD Form 293.
3. Exhibit(s) submitted:

         A-1: DD Form 293, dated 970408.



PART IV - PREHEARING REVIEW
SECTION B - Medical and/or Legal Advisory Opinion
( X ) NONE
PART V - SUMMARY OF HEARING
SECTION A-Attendees and exhibits

1. Review/Hearing information:
         a. Applicant testified: ( ) Yes ( X ) No

        
         b. Witness(es) testified: ( ) Yes ( X ) No
        

2. Exhibit(s) submitted at hearing: ( X ) NONE
PART V HEARING SUMMARY
SECTION B-Case Analyst’s Summary

1. APPLICANT REQUESTS : That his discharge under other than honorable conditions be recharacterized to general.

 2. APPLICANT CONTENDS : That his “undesirable” discharge should be upgraded because he was treated unfairly and he was advised by the Chaplain to take the “O.T.H.” and get out because the first sergeant was trying to put him in jail. In a letter submitted to the Board, the applicant contends that he tested positive for cocaine in April 1996, received nonjudicial punishment and was offered drug rehabilitation. He accepted treatment, was a rehab failure and his command initiated chapter 13 paperwork (honorable discharge). He claims he was told that he would be discharged in 15 days and he was not. In October 1996 he received nonjudicial punishment for wrongful use of marijuana. He denied this charge because he claims he was on restriction at the time the urinalysis was taken. He contends that his paperwork was changed to ‘O.T.H.”. He initially wanted to appeal the decision, however, after the chaplain told him that his first sergeant was trying to put him in jail; he got scared and decided not to appeal. He claims his unit never approved his passes or requests for leave and he lost 58.5 days of leave. He contends that he lost his GI Bill and benefits, he was treated unfairly and was intimidated by his former unit.

3. COUNSEL CONTENDS : The applicant is not currently represented by counsel.

4. SUMMARY OF SERVICE : Records available to the Board show that the applicant completed high school and one year of college prior to joining the Army on 14 April 1993 for a term of 4 years. He completed basic and advanced individual training, served in Korea for 12 months and advanced to specialist in December 1995. He reenlisted on 6 March 1996 for an additional 3 months and was awarded the Good Conduct Medal.

Between 30 April 1996 and 15 October 1996, the applicant received three nonjudicial punishments for failing to go at the time prescribed to his appointed place of duty (5 specifications) and wrongful use of cocaine and marijuana. He was counseled on numerous occasions for failure to be at appointed place of duty and misconduct.

The applicant received inpatient alcohol and drug treatment between 2 June 1996 through 16 June 1996. He did not complete treatment as he drank during treatment and was AWOL from the ward. He was moved off ward awaiting air evacuation due to his poor attitude towards treatment.

On 15 October 1996 the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for patterns of misconduct. The unit commander recommended separation with a discharge under other than honorable conditions and based his recommendation on the applicant’s wrongful use of cocaine and history of continued absences from his appointed place of duty. The intermediate commanders recommended a discharge under other than honorable conditions. On 17 October 1996, the applicant consulted with counsel, waived consideration by an administrative separation board and elected to make a statement on his behalf. In his statement, he contends that he had personal differences with one of the instructors at the hospital (inpatient treatment) which contributed to his failure. He also acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued. On 30 October 1996, the applicant was counseled on the contemplated action to separate him for Commission of a Serious Offense under the provisions of paragraph 14-12c. He waived consideration before an administrative separation board and acknowledged that his chain of command recommended a discharge under other than honorable conditions. Prior to his discharge, the applicant underwent a mental status evaluation and medical examination and was found qualified for separation.




On 22 November 1996 the separation authority approved a discharge under other than honorable conditions under the provisions of chapter 14, paragraph 14-12b, for patterns of misconduct. The applicant was separated on 27 November 1996 with 3 years, 7 months and 14 days of creditable service.

5. LEGAL/REGULATORY BASIS FOR SEPARATION :
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

6. ISSUES OF PROPRIETY : There were no issues of propriety presented by the applicant.

7. ISSUES OF EQUITY : The issue of equity presented by the applicant is that his “undesirable” discharge should be upgraded because he was treated unfairly by his unit and he was advised by the Chaplain to take the “O.T.H.” and get out because the first sergeant was trying to put him in jail.







PART VI - ISSUES AND FINDINGS

1. Applicant's issue(s) of propriety and/or equity:
          ( X )   Same as those listed on DD Form 293 and Part IV, Section A, Paragraph 2.
         ( )     Revised issue(s) furnished in writing by applicant as follows:
         ( )     Additional issue(s) identified during review/hearing as follows:
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 numbers below corresponds to the issue numbers on the DD Form 293, or in Part VI, Paragraph 1, above.

 (1) The issue is rejected. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a soldier. The applicant, as a soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting a general discharge. Accordingly, the Board voted to deny relief.
3. Response to item(s) not addressed as decisional issue(s): ( X ) NA
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
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508



3. Minority views: ( X ) NA
PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

___________________________________
MRS. WALLER
Case Analyst and Reviewing Official
PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
(X) NONE
SECTION B - CERTIFICATION


Approval Authority:
WILLIAM E. MATHEWS
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:



JIMMY R. WYRICK
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge          C - Other
B - Material submitted by applicant

INDEX RECORD:

AD9701540 980121 UD 961127 AR635-200 C14 A6700 NC 5-0 A
1 10 11 12 18 20 26 41 46 49 52

A9411 A9329
53 58




REMARKS
Case Management Data

( ) Notify inquiries clerk. Response to other correspondence required upon completion of case.

( ) Escalated mode of hearing. Applicant is entitled to another review only if he/she/authorized representative appears before a hearing panel. If there is no response to notification letter or applicant/representative fails to appear for the hearing, the case will be returned to the ARBA Support Division, St. Louis without action.

( ) DD Form 149 in file. Send case to ABCMR.


PART IX - VOTING RECORD

 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1. COL MICHAEL H. JACKSON Mbr      X          X    

2. COL ALLEN, THOMAS J. Mbr      X          X    

3. COL SHATZER, WILSON A. Mbr      X          X    

4. COL MILLER, JOEL D. Mbr      X          X    

5. COL MELCHIOR, ROBERT J. PO      X          X    






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