Upgrade.Vet

ARMY | DRB | CY1998 | 1998012200

Original file (1998012200.rtf) Auto-classification: Denied

PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: GD

2. Date of discharge (or REFRAD): 971002

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         b. Reason: Misconduct

4. Prior review(s): NONE

PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

1.       Service data: 2. Awards and decorations:
                           NONE
a. Period entered for: NIF
b. Entry date: 961002
c. Age: 24 Years DOB: 711015
d. Educational level: NIF
e. Aptitude area score:
         GT: NIF 3. Highest grade achieved:
f. Length of Service: E5
1 Years 0 Months 1 Day

4. Performance evaluations:
See OMPF

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)


         b. SPCM:
                  Date Offense(s)

         c. GCM:
                  Date Offense(s)
                  970415   Maltreatment of a subordinate X 2

8.       Remarks: NONE

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         RA 890629 930628 HD
         RA 930629 961002 HD

PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. Evidence of record shows that on 10 July 1997, 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 a recommendation for general, under honorable conditions discharge (GD). The applicant was advised of his rights, acknowledged notification, consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and elected not to submit a statement in his own behalf. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a GD. On 4 September 1997 an administrative separation board convened, at which the applicant appeared with counsel, to consider the applicant’s case. They recommended the applicant be separated for misconduct-commission of a serious offense and that he receive a GD. On 19 September 1997, the separation authority approved the board findings and recommendations and directed that the applicant be discharged with a GD.

         b. On 2 October 1997, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 1 year, 1 day of his current enlistment, and a total of 8 years, 3 months and 4 days of active military service.

         c. The applicant’s record reflects that he had completed over 8 years of service; attained the rank of sergeant/E-5; and earned two Army Commendation Medals, the Army Achievement Medal, two Good Conduct Medals, and the Southwest Asia Service Medal for combat service during Operation Desert Storm. The available records are free of disciplinary infractions other than the offenses which led to the applicant’s discharge. He was found guilty by general court-martial of two specifications of maltreatment of a subordinate. The unit commander recommended that the applicant be separated for commission of a serious offense. The applicant’s case was considered by an administrative separation board which found that the preponderance of the evidence supported the commander’s allegation that the applicant committed a serious offense; that he was not desirable for further service; and that further rehabilitation was not possible. The separation authority approved the board findings and directed that the applicant be discharged for the commission of a serious offence; that he receive a GD; and that rehabilitation requirements be waived in this case.

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 980623.
         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 D.C . on 17 February 1999 .

         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) and (2) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his DD Form 214 incorrectly listed his period of service and that he should be issued a corrected DD Form 214 for his periods of honorable service prior to the enlistment under review. However, the Board concluded that the DD Form 214 issued the applicant was prepared in accordance with applicable regulations. DD Form 214’s are not issued for periods of service that are ended as a result of an immediate reenlistment. Further, the Board found no evidence of arbitrary or capricious actions by the command. 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.

(3) The issue is rejected. The Board noted the applicant’s contention that, in effect, his discharge was not appropriate and that his service should be characterized as honorable, as outlined in his letter to the Board. However, after carefully examining the applicant's record of service during the period of enlistment under review, the Board determined that the applicant’s misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge. There was a full consideration of all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board concluded that the discrediting entries in the applicant's record were not mitigated by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed. 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 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: NONE

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified


MR. ADRIANCE
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

NONE

SECTION B - CERTIFICATION

Approval Authority:

THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:

SUZANNE WALKER
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: 1998012200 INDEX NUMBERS: A9217
Date of Review: 990217 A9405
Character of Service: GD A9411
Date of Discharge: 971002 A0100
Authority: AR 635-200 C14
Reason: A6730
Results of Board Action/
Vote/Affirmation: NC 5-0 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.      Mbr     X         X

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ARMY | DRB | CY1998 | 1998012200

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