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ARMY | DRB | CY1999 | 1999022988

Original file (1999022988.rtf) Auto-classification: Approved

PART II - APPLICATION DATA

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

1. Character of Discharge: HD

2. Date of discharge (or REFRAD): 940801

3. Authority for separation:

         a. Regulation: Paragraph 14-12c (2), 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:
                           AAM
a. Period entered for: 6 Years NDSM
b. Entry date: 910627 ASR
c. Age: 28 Years DOB: 730129 C/Ach(2)
d. Educational level: HS Grad L/A
e. Aptitude area score:
         GT: 102 3. Highest grade achieved:
f. Length of Service: E4
3 Years 1 Months 5 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)
         940510 Conspire with SPC, to commit an assault (930826); commit an assault upon SGT (930826)

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
NONE

Other discharge(s):

         Service From      To        Type Discharge

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 17 June 1994, 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, requested consideration of my case by an administrative separation board, and submitted a statement in his own behalf. The unit commander subsequently recommended separation from the Army. On 28 June 1994, the separation authority directed that the applicant be discharged with a GD.

         b. On 1 August 1994, the applicant was discharged with an honorable discharge. At the time of discharge, the applicant had completed 3 years,
1 month, and 5 days service on his current enlistment.

         c. The applicant’s record shows that he accepted an Article 15 on 10 May 1994 for conspiring to commit and committing an assault which resulted in his reduction in rank to private/E-2. The applicant’s unit commander processed him for separation for commission of a serious offense based on these incidents and the separation authority approved the separation and directed a GD. However, the evidence of record shows that there are several administrative errors contained on the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued the applicant at discharge. The most serious error is that someone in the discharge process erroneously changed the type of discharge and characterization of service to fully honorable, as opposed to the general, under honorable conditions discharge/characterization directed by the separation authority. There was also incorrect separation (SPD) and reentry (RE) code’s assigned which stemmed from an error in the authority for separation. The proper authority for separation, as initiated by the unit commander and approved by the separation authority, was Paragraph 14-12c, AR 635-200, commission of a serious offense. By regulation this would have resulted in the assignment of an SPD code of JKQ and an RE code of 3. Instead the DD Form 214 contained an incorrect authority for separation of 14-12c(2), commission of a serious offense-abuse of illegal drugs, which resulted in the assignment of an SPD code of JKK and an RE code of 4.

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 981027, with five (5) 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:
         ( X ) Records review ( ) Hearing

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

         c. Review/hearing location and date: Washington D.C. on 10 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: ( ) 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 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) See Paragraph 3, below.


         b. Equity:       The applicant has not submitted an issue of equity and the ADRB has not otherwise relied upon an issue of equity to change the discharge. The major factors upon which the discharge was based are set forth in Parts III and IV of this decisional document.

3. Responses to items not addressed as decisional issues:

During the review of this case, the Board noted that someone in the discharge process erroneously changed the characterization of service directed by the separation authority. The separation authority directed that the applicant receive a general, under honorable conditions discharge. However, the DD Form 214 issued the applicant resulted in an honorable discharge. The Board elected not to correct this error based on its policy not to correct errors that result in a less favorable result for the applicant.

(1), (2), and (3) The Board noted the following administrative errors contained on the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued the applicant at separation: Block 25 (Separation Authority), as reads-AR 635-200, Para 14-12c(2)/should read-AR 635-200, Para 14-12c; Block 26 (Separation Code) as reads-JKK/should read-JKQ; and Block 27 (Reentry Code) as reads-4/should be-3. The Board has directed, in Part VIII of this document, that these administrative errors be corrected and the applicant be issued a new DD Form 214.

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

TO: ARBA Support Division-St Louis Date: 12 March 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 changes:

( X )    Other (see remarks below).

Remarks: Change the following incorrect items on the DD Form 214, as indicated below, and issue a new DD Form 214:

                  Block 25 (Separation Authority): AR 635-200, Para 14-12c
                  Block 26 (Separation Code): JKQ
                  Block 27 (Reentry Code): RE-3

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: 1999022988 INDEX NUMBERS: A0156
Date of Review: 990310 A9446
Character of Service: HD A9500
Date of Discharge: 940801
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 | CY1999 | 1999022988

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