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ARMY | DRB | CY1999 | 1999025082
Original file (1999025082.rtf) Auto-classification: Denied
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): 840405

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

          b. Reason: Civilian Conviction
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            ASR
a. Period entered for: 3 Years OSR
b. Entry date: 800221
c. Age: 18 Years DOB: 620215
d. Educational level: GED
e. Aptitude area score:
          GT: 94 3. Highest grade achieved:
f. Length of Service: E3
2 Year(s) 2 Month(s) 10 Day(s)

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 820508-820512

         Mil conf

         Civil conf 820120-820120; 820513-840405

         Other


6. Nonjudicial punishment:

         Date     Offense(s)
         811215 FTG (811205)

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
         USAR 790504 790817 HD



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 3 February 1983, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of conviction by civil authorities, and minor disciplinary problems, with an under other than honorable conditions (UOHC) discharge. He was advised of his rights. The applicant acknowledged notification, 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 from the service. The intermediate commander and senior intermediate commander reviewed the proposed discharge action, request rehabilitation requirements be waived and recommended approval. On 25 July 1983, the separation authority directed that the applicant be discharged with an UOHC discharge.

         b. On 5 April 1984, the applicant was discharged with an under other than honorable conditions discharge. At the time of discharge, the applicant had
2 years, 2 months, and 10 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 990324, 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:
         ( X ) Records review ( ) Hearing

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

         c. Review/hearing location and date: Washington, DC on 5 May 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 parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, paragraph l, above:

 (1), (11), (12), (13), and (14) The issues are rejected. The Board carefully examined the applicant’s record of service during the period of enlistment under review. The Board noted the applicant’s contentions that his discharge should be voided because it was initiated after his term of service expired; that there were discrepancies in the separation paperwork; and that the separation process was allowed to continue without correcting these discrepancies. Even though, there was an error in the separation documents the evidence of record reveals that the applicant was advised of his rights, to include his right to counsel or his right to waive any of the rights cited in the notification procedure. The record further reveals the applicant signed a corrected statement on 5 July 1983 stating that he had been afforded the opportunity to consult with counsel and that he declined that opportunity. Army Regulation 635-200, chapter 14 states that execution of the approved discharge will be withheld until exhaustion of the appeal process. Notwithstanding this, the Board concluded that the rights of the applicant were not prejudiced by the error on file in this case. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error. The conviction by civil authorities and confinement of the applicant obligated military authorities to consider the applicant for discharge. Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. Because of the civilian conviction, the applicant diminished the quality of service below that meriting a fully honorable or general discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.
         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:

 (2), (3), (4), (5), (6), (7), (8), (9), and (10) The issues are rejected. There was a full consideration of all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board concluded that the discrediting entries in the applicant's record were not outweighed by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed.

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 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       

                                 
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: 1999025082 INDEX NUMBERS: A9217
Date of Review: 990505 A0100
Character of Service: UD A9201
Date of Discharge: 840405 A9217
Authority: AR 635-200 C14 A9223
Reason: A6700 A9229
Results of Board Action/ A9301
Vote/Affirmation: NC 5-0 A A9309













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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