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ARMY | DRB | CY1999 | AR1999016046
Original file (AR1999016046.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): 970113

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: 4 Years
b. Entry date: 960605
c. Age: 24 Years DOB: 720602
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 97 3. Highest grade achieved:
f. Length of Service: E4
0 Years 7 Months 9 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)
         960722 Failure to obey a lawful order (960713)
         961002 Being disrespect in language toward an NCO (960826)

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 930204 960604 HD



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 14 November 1996, 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 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 elected not to submit a statement in his own behalf. The intermediate commander reviewed the proposed discharge action and recommended approval with a GD. On 26 November 1996, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a GD.

         b. On 13 January 1997, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 7 months and 9 days of his current enlistment and a total of 3 years, 11 months and 10 days of active military service.

         c. The applicant’s record shows that he completed over 3 years of service; that he attained the rank of specialist/E-4; and that he earned a Good Conduct Medal, and two awards of the Multinational Force Observers Medal for service in the Sinai, Egypt. His disciplinary record for the period under review reflects that he accepted two Article 15’s: the first on 22 July 1996, for disobeying a lawful order which resulted in a reduction to private first class/E-3; and the second on 2 October 1996, for being disrespectful in language toward an NCO which resulted in a reduction to private/E-2. The unit commander processed the applicant for separation citing the 2 October Article 15 as the basis for taking 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 981211, 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 Examiner
         ( ) Tender Offer

         c. Review/hearing location and date:
                  Video Site: Tampa, Florida on 13 May 1999.
                  Board Site: Washington D.C. on 19 May 1999.
         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: Two (2) additional 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 (5) The characterization of service was too harsh.

          b. Request: ( X ) Recharacterization ( X ) 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. There was a full consideration of all service including the infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board determined that the characterization of service was inequitable because the applicant's generally acceptable personal conduct and performance of duty mitigated his misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable.

(1), (2), (3), and (4) The issues are rejected. The Board carefully examined the facts and circumstances surrounding the applicant’s separation action and all the evidence of record. Upon completion of this review 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. The Board, being convinced that the reason for discharge was both proper and equitable, voted to deny relief beyond that already provided in response to issue (5) 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 Honorable .
         ( )      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. ADRIANCE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A – DIRECTIVE

TO: ARBA Support Division-St Louis Date: 21 May 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 )   Change the characterization of the discharge to Honorable.


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: 1999016046 INDEX NUMBERS: A9218
Date of Review: 990519 A9334
Character of Service: GD A9406
Date of Discharge: 970113 A9446
Authority: AR 635-200 C14 A0100
Reason: A6730
Results of Board Action/
Vote/Affirmation: HD 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.      Mbr      X          X    

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