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ARMY | DRB | CY1999 | AR1999018459
Original file (AR1999018459.rtf) Auto-classification: Approved
PART II - APPLICATION DATA

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

1. Character of Discharge: UOHC

2. Date of discharge (or REFRAD): 980810

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:
                            GCMDL
 a. Period entered for: 4 Years ARCOM
b. Entry date: 950712
c. Age: 34 Years DOB: 610122
d. Educational level: 14 Years
e. Aptitude area score:
          GT: 104 3. Highest grade achieved:
f. Length of Service: E7
3 Years 4 Months 25 Days

4. Performance evaluations:
NONE

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

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL

         Mil conf

         Civil conf 970606-970709

         Other


6. Nonjudicial punishment:

         Date     Offense(s)
         961007 FTG, two specifications (960918); (960919)
        

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 790123 811122 HD
         RA 811123 850805 HD
         RA 850806 891003 HD
         RA 891004 920308 HD
         RA 920309 950711 HD



PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. On 15 September 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—patterns of misconduct and commission of a serious offense, with a recommendation for an under other than honorable conditions (UOHC) discharge. The applicant was advised of his rights, consulted with legal counsel, was advised of the impact of the discharge action, and requested a hearing by an administrative separation board (ASB) of officers. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a UOHC discharge. On 10 February 1998, the ASB convened, with the applicant and his counsel present, and found that the applicant was undesirable for further service based on his commission of a serious offense and recommended he receive a UOHC discharge. On 5 May 1998, the general court-martial convening authority approved and forwarded the findings and recommendations of the ASB to Department of the Army (DA) for final approval. On 30 July 1998 the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASAM&RA) approved the applicant’s separation for misconduct-commission of a serious offense and directed that the applicant receive a UOHC discharge, and that he be reduced to the lowest enlisted grade.

         b. On 10 August 1998, the applicant was separated with a UOHC discharge. At the time of discharge, the applicant had completed 3 years, 4 months, 25 days of his current enlistment, and a total of 19 years, 5 months and 9 days of active military service.

          c. The applicant’s record shows that he completed over 19 years of service; that he attained the rank of sergeant first class/E-7; and that he earned three Army Commendation Medals, six Army Achievement Medals, six Good Conduct Medals, the Army of Occupation Medal, and the Overseas Service Ribbon. His disciplinary record includes his acceptance of an Article 15 on 7 October 1996, for two specifications of failure to go to his prescribed place of duty. On 7 June 1997, he tested positive for the wrongfully use of cocaine. He was enrolled in the Army Drug and Alcohol Prevention Control Program on 14 August 1997 and was required to attend group meetings weekly; however, after five meetings he still refused to admit to using cocaine, and on 15 September 1997 he was declared an ADAPCP rehabilitation failure.

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 990121, with three (3) 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: Chicago, Illinois on 12 June 1999.
          Board Site: Washington D.C. on 17 June 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: ( X ) Yes ( ) No
        
2. Exhibits submitted at hearing: Three (3) 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: (8) The characterization of service was too harsh.

         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 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 (6) The issues are rejected. The Board noted the applicant’s contentions that, in effect, the administrative separation board did not adhere to an agreement to consider his case based on the reason for discharge being a pattern of misconduct; and that he had to beg to be enrolled in ADAPCP and was not given ample time to rehabilitate. The evidence of record shows that the applicant was processed for separation based on both a pattern of misconduct and for the commission of a serious offense, and that he was properly notified of this when separation action was initiated. Further, the Board determined that the applicant’s chain of command attempted to assist him by enrolling him in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP); and that he was aware of the consequences of any action which would demonstrate his inability or refusal to participate in, cooperate in, or successfully complete such a program. As a result of his own actions, and after consultation with the drug and alcohol abuse counselor, the command declared him a rehabilitation failure. 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.


         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.


 (8) 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 quality of the applicant's service did not warrant the granting of an under other than honorable conditions discharge. The applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient merit to warrant an upgrade of the discharge being reviewed. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it.




(2), (3), (4), and (5) The issues are rejected. The Board noted the applicant’s contentions that, in effect, all the witnesses at his ASB testified that he should be retained; that a witness testified that he needed professional help but that the chain of command indicated he could help himself; that his command sergeant major did not want to hear about his problems; and that a major testified that his unit was weird and that the applicant needed the support of his chain of command. The Board concluded that these issues do not mitigate the applicant’s misconduct sufficiently to warrant relief beyond that already provided in response to issue (8) above. The evidence of record clearly shows that the testimony of all the witnesses referred to by the applicant was given due consideration throughout the separation process. The board proceedings and witness testimony was available to the general court-martial convening authority prior to his approval of the findings and recommendations of the administrative separation board. Finally, the entire record was available to the Assistant Secretary of the Army for Manpower and Reserve Affairs prior to final approval being given on the applicant’s discharge.

(7) The issue is rejected. The Board noted the applicant’s contention that, in effect, he wished to retained in service to better himself and to gain the benefits to which he should be entitled. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the special trust and confidence placed in him as a non-commissioned officer (NCO). As an NCO, he 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 this misconduct diminished the quality of service below that meriting a fully honorable discharge. The Army Discharge Review Board is not empowered to return former service members to active duty. The Board may only change the characterization or reason for discharge. The Army Board for Correction of Military Records (ABCMR) is the proper venue for this request. If the applicant still believes there is an error or injustice in his discharge and desires to be retained on active duty he should make application to the ABCMR utilizing the DD Form l49 enclosed with this document.


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 General, Under Honorable Conditions.
         ( )      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 5 0

         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: 22 June 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 )   Characterization of discharge be changed to General, Under Honorable Conditions.
( X )   Other (see remarks below).
Remarks: Restore the applicant’s grade to Sergeant First Class/E-7.


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: 1999018459 INDEX NUMBERS: A0127
Date of Review: 990617 A0225
Character of Service: UD A0147
Date of Discharge: 980810 A9218
Authority: AR 635-200 C14 A9445
Reason: A6770
Results of Board Action/
Vote/Affirmation: GD 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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