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ARMY | DRB | CY1999 | 1999024442
Original file (1999024442.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): 980404

3. Authority for separation:

         a. Regulation: Chapter 7, AR 135-178

          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:
                            SWASM/2BSS
a. Period entered for: 6 Years KLM
b. Entry date: 920712
c. Age: 36 Years DOB: 560426
d. Educational level: GED
e. Aptitude area score:
          GT: 117 3. Highest grade achieved:
f. Length of Service: E5
5 Year(s) 8 Month(s) 23 Day(s)

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)
         941002   Acquiring & possessing an automatic weapon (AK-47) and smuggling it back to the US.

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 (970628)
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         USAR 771113 780316 NA
         USAR 780317 780409 HD
         RA 780410 810331 HD
         USAR 810401 901226 NA
         USAR 901227 910503 HD
         USAR 910504 920711 NA



PART IV - PREHEARING REVIEW

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

         a. Note: The evidence of record shows that on 27 August 1997, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, AR 135-178, misconduct-commission of a serious offense, with an under other than honorable conditions discharge. He was advised of his rights. On 4 April 1998, Orders 94-1, DA, HQ, US Army, Special Operations Command, Fort Bragg, NC, discharged applicant from the USAR, with a general, under honorable conditions discharge.

         b. On 4 April 1998, the applicant was discharged with a general, under honorable conditions discharge, under the provisions of Chapter 7, AR 135-178, by reason of misconduct-commission of a serious offense. He was credited with
5 years, 8 months, and 23 days active service on the enlistment under review and
20 years, 7 months and 10 days total time in service.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation. The regulation provided that the separation authority could disapprove the commander’s recommendation for discharge for misconduct and direct disposition by other means, disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should be separated for misconduct. When discharged under this provision, Army policy states that the characterization of service will normally be under other than honorable conditions. The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.

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 981216.
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE
         C-1: DD Form 149, dated 981216.

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, DC on 7 April 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: ( 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), (3) and (4) The issues are rejected. The Board carefully examined the applicant's record of service during the period of enlistment under review. The evidence of record revealed that the applicant was discharged under the provisions of Chapter 7, Army Regulation 135-178 for misconduct as a result of acquiring, possessing, and smuggling an automatic weapon (AK-47) in violation of military orders as well as state and federal laws. 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. Additionally, the Army Discharge Review Board is not empowered to reinstate former service members to active duty or authorized back pay. Finally, the Board concluded that the discrediting entry in the applicant's record was not outweighed by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed. Accordingly, 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 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       

                                 
MRS. WADE
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:

 AR Number: 1999024442 INDEX NUMBERS: A9217
Date of Review: 990407 A0100
Character of Service: GD A9411
Date of Discharge: 980404 A9405
Authority: AR 135-178 C7 A9445
Reason: A6730
Results of Board Action/
Vote/Affirmation: NC 4-1 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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