Upgrade.Vet

ARMY | DRB | CY1998 | 1998012709

Original file (1998012709.rtf) Auto-classification: Approved

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): 900330

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         b. Reason: Misconduct-Commission of a Serious Offense

4. Prior review(s): Records (911209)

PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

1.       Service data: 2. Awards and decorations:
                           AAM(2)
a. Period entered for: 6 Years GCMDL
b. Entry date: 880315 NCOPDR(1)
c. Age: 23 Years DOB: 641207
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 94 3. Highest grade achieved:
f. Length of Service: E5
2 Years 0 Months 0 Days

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:

         Date     Offense(s)
         900131 FTG, two specifications (900116), (900117)

7. Court-Martial data: NONE

         a. SCM:
                  Date Offense(s)


         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 850521 880314 HD

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that 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 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 in his own behalf. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a GD. On 23 March 1990, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a GD.

         b. On 30 March 1990, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 2 years, 0 months, and 0 days of his current enlistment and a total of 4 years, 10 months and 10 days of active military service.

         c. The applicant’s record reflects that he completed almost 5 years of service, attained the rank of sergeant/E-5, completed an overseas tour of duty in Germany, and earned the Good Conduct Medal and two Army Achievement Medals. The applicant’s disciplinary record for the period of service under review includes his acceptance of an Article 15 for two specification of failing to go to his prescribed place of duty, his punishment for this offense included a reduction in rank to specialist/E-4. Further the evidence of record contains an extensive record of his counseling regarding indebtedness. The unit commander processed the applicant for separation for commission of a serious offense citing the applicant’s civil conviction of theft-bad check and the disciplinary record cited above as the basis for his action.

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 981116.
         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: Washington D.C. on 25 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:

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: (5) The reason for discharge is inequitable.

         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.

(5) The issue is accepted. Regulations currently in effect list the reason for the applicant’s discharge as misconduct. Accordingly, the Board voted to change the narrative reason on the DD Form 214 to misconduct. The Board was satisfied that the characterization of service was proper and equitable, and voted not to change it.

(1), (2), and (3) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his indebtedness offenses were minor; that he received accelerated promotion to sergeant; and that he finished in the top 15 percent of his primary leadership development course. However, the Board concluded that these factors, neither individually or in sum, mitigate the applicant’s misconduct sufficiently to warrant an upgrade of his discharge beyond that already provided in response to issue (5) above.

(4) The issue is rejected. Neither the evidence of record nor the independent evidence submitted by the applicant supports his contention that he was discriminated against by his superiors. 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. 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.
         ( )      Inequitable as to characterization. Change characterization to                                .
         ( X )    Inequitable as to reason. Change reason to Misconduct under Chapter 14, AR 635-200.
         ( )      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 5 0
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
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 MILLER
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis Date: 27 January 1999.

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 )    Reason and authority for discharge be changed to
        Misconduct under Chapter 14, AR 635-200 .

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: 98012709 INDEX NUMBERS: A9217
Date of Review: 990125 A9201
Character of Service: GD A9211
Date of Discharge: 900330 A9315
Authority: AR 635-200 C14 A0100
Reason: A6730
Results of Board Action/
Vote/Affirmation: MD 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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ARMY | DRB | CY1998 | 1998012709

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