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ARMY | DRB | CY1998 | 1998012637
Original file (1998012637.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): 910703

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

          b. Reason: Misconduct-Pattern of Misconduct
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: 4 Years NCOPDR
b. Entry date: 881113 ASR
c. Age: 23 Years DOB: 650606
d. Educational level: 13 Years
e. Aptitude area score:
          GT: 116 3. Highest grade achieved:
f. Length of Service: E3
2 Years 7 Months 21 Days

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:

         Date     Offense(s)
         890707   Violating a lawful regulation by possessing a lock blade knife with a blade exceeding three inches in length.
         900730 Failure to obey lawful order from a LTC (900630)

7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: Bar to Reenlistment (910306)
SECTION B - Prior Service Data
NONE

Other discharge(s):

          Service   From      To        Type Discharge
         ADT      850809   851114   Uncharacterized
         USAR     830307   890222   HD



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 9 May 1991, the unit commander notified the applicant of initiation of separation action under the provisions of
Chapter l4, AR 635-200, by reason of misconduct—patterns of misconduct, with a general, under honorable conditions discharge (GD). The applicant was advised of his rights, consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf. The unit commander recommended separation from the Army. On 17 May 1991, the separation authority directed that the applicant be discharged with a GD.

         b. On 3 July 1991, the applicant was discharged with a GD. At the time of discharge, the applicant had completed a total of 2 years, 7 months, 21 days of his current enlistment; a total of 3 years and 16 days of active military service; and 3 years, 3 months, and 13 days of inactive service.
         c. The applicant’s record indicates that he had completed over 2 and 1/2 years of his current enlistment and attained the rank of private first class/E-3. There are no documented acts of valor, achievement, or service warranting special recognition contained in the record. However, the evidence of record does include an extensive disciplinary history. On 7 July 1989 the applicant accepted an Article 15 for failure to obey an order from a Lieutenant Colonel; and on
30 July 1990 he accepted a second Article 15 for violating a lawful regulation by possessing a lock blade knife with a blade exceeding 3 inches in length. His punishment for the last offense included a reduction in rank to private/E-2. The applicant was also barred from reenlistment based on the Article 15’s listed above, indebtedness, and failing three consecutive Army Physical Readiness Tests (APRT). The unit commander processed the applicant for separation based on the seriousness of his misconduct and the fact that he did not have the potential to develop into a satisfactory soldier.

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 980729, with one (1) 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:
         ( ) Records review ( X ) Hearing

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

         c. Review/hearing location and date:
(1) Video Recording Site: St. Louis, Missouri on 12 January 1999 .
(2) Board Site: Washington D. C. on 15 January 1999.

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

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: None

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), (2), and (3) The issues are rejected. The Board noted the applicant’s contentions that, in effect, he was not given an opportunity to prove his actions were justifiable prior to receiving nonjudicial punishment; that he should have received a medical discharge based on an injury he received; and that he was not assisted in getting quarters closer to post. However, after carefully examining the applicant’s record for the enlistment under review, the Board found these claims were not supported by either the evidence of record or the independent evidence submitted by the applicant. The Board also noted that the applicant was not afforded an opportunity to have his case heard by an administrative separation board; however, notwithstanding this, and in view of the circumstances of this case, the Board concluded that the rights of the applicant were not prejudiced by this error. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error. The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial punishment. The applicant failed to respond appropriately to these efforts. Before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about the deficiencies which could lead to separation. The Board noted the command made an assessment of the applicant's potential for becoming a fully satisfactory soldier. The evidence of record established that the applicant was afforded a reasonable opportunity to overcome noted deficiencies. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. 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       

                                 
COL ORA J. WILLIAMS
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:

 AD Number: 9801637 INDEX NUMBERS: A9217
Date of Review: 990115 A9307
Character of Service: GD A9329
Date of Discharge: 910703 A0100
Authority: AR 635-200 C14
Reason: A6700
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.      PO      X          X    





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