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ARMY | DRB | CY1999 | 1999024994

Original file (1999024994.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): 981027

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:
                           NDSM
a. Period entered for: 3 Years ASR
b. Entry date: 960523
c. Age: 25 Years DOB: 710413
d. Educational level: 15 Years
e. Aptitude area score:
         GT: 116 3. Highest grade achieved:
f. Length of Service: E4
2 Year(s) 5 Month(s) 5 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: NONE

         Date     Offense(s)


7. Court-Martial data: NONE

         a. SCM:
                  Date Offense(s)


         b. SPCM:
                  Date Offense(s)

         c. GCM:
                  Date Offense(s)
                  980608   aggravated assault by a means likely to produce death or grievous bodily harm

8.       Remarks: NONE

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         ARNGUS 930127 951215 HD
         ARNG 930308 930625 HD
         (concurrent svc)

PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 8 June 1998 the applicant was found guilty by a general court-martial of aggravated assault by a means likely to produced death or grievous bodily harm. On 22 October 1998, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—aggravated assault, with a general (GD) discharge. He was advised of his rights. The applicant declined legal counsel, was advised of the impact of the discharge action, waived a hearing by a board of officers and did not submit a statement on his behalf. The unit commander subsequently recommended separation with a GD. On 26 October 1998, the separation authority directed that the applicant be discharged with a GD.

         b. On 27 October 1998, the applicant was discharged with a general, under honorable conditions discharge. At the time of discharge, the applicant had
2 years, 5 months, and 5 days service on his current enlistment.

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 990326, with four (4) 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, DC on 30 June 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (4) the characterization of service is 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 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.

(4) The issue is accepted. The Board considered the applicant’s entire service record including the infraction of discipline, the extent thereof, and the seriousness of the offense as well as his post service conduct. The Board determined that the characterization of service was inequitable because the applicant's generally acceptable personal conduct and performance of duty mitigated the misconduct in the service record. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable. The Board determined that the reason for discharge was proper and equitable and voted not to change it

(1), (2), and (3) See Paragraph 3, below.

3. Response(s) to item(s) not addressed as decisional issue(s):

Inasmuch as the Board voted to grant the full relief requested, responses to remaining issues are neither required nor rendered.

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


MRS. WADE
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis Date: 30 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 )   Change characterization of 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: 1999024994 INDEX NUMBERS: A9218
Date of Review: 990630 A0100
Character of Service: GD A9235
Date of Discharge: 981027 A9211
Authority: AR 635-200 C14 A9221
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.      PO     X X

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ARMY | DRB | CY1999 | 1999024994

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