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ARMY | DRB | CY1999 | 1999025337
Original file (1999025337.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): 951116

3. Authority for separation:

         a. Regulation: Chapter 7, AR 135-178

          b. Reason: Misconduct-Abuse of Illegal Drugs
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            NONE
a. Period entered for: 6 Years
b. Entry date: 910603
c. Age: 35 Years DOB: 550719
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 94 3. Highest grade achieved:
f. Length of Service: E4
4 Years 5 Months 11 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: NONE
         Date     Offense(s)
        


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
         ARNGUS 751107 760220 HD
         ARNGUS 760221 800428 GD
         ARNGUS 840629 900517 GD



PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. The evidence of record shows that on 5 May 1995, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, AR 135-178, misconduct-abuse of illegal drugs, 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 elected not to submit a statement in his own behalf. Two intermediate level commanders reviewed the proposed discharge action and recommended approval of the discharge; however, the characterization of service recommendation was unclear, in that, both commanders indicated incompatible terms by recommending a general discharge, but also recommending it be under other than honorable conditions. On 4 November 1995, the separation authority directed that the applicant be discharged with a UOHC discharge; however, based on the separation packet it is unclear if UOHC is what was intended.

         b. On 16 November 1995, the applicant was discharged with a UOHC discharge.
At the time of discharge the applicant had completed 4 years, 5 months, and
14 days of his current enlistment and a total of 17 years, 6 months and
14 days of credible service.

         c. The applicant’s record shows that he had completed over 17 years of credible service in the Army National Guard and the United States Army Reserves. The applicant tested positive for cocaine and was processed for separation based on this misconduct. The applicant consulted counsel and completed his election of rights by requesting an administrative separation board; however, failed to respond when the board was scheduled which is tantamount to waiving his rights. The unit commander recommended a UOHC discharge; however, two intermediate level commanders recommended a general discharge but both characterized a general discharge as being under other than honorable conditions which is not possible. The separation authority directed a UOHC; however, a work sheet for his endorsement indicates a general discharge be granted. The applicant was ultimately discharged from the United States Army Reserve with a UOHC discharge.

 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 990405, with one (1) 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 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (2) 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 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.

 (2) The issue is accepted. The Board took special note of the conflicting characterization of service recommendations made by two intermediate level commanders in arriving at this decision. Further, there was a full consideration of all service including the infraction of discipline, the extent thereof, and the seriousness of the offense. 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 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.


(1) See Paragraph 3, below.
3. Response to the item not addressed as a decisional issue:

 Inasmuch as the Board voted to grant the relief requested by the applicant, a response to the remaining issue is 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 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: 7 May 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 correct all records to reflect the following directed changes:


 ( X )   Characterization of discharge be changed to General, Under Honorable Conditions.

( X )   Other (see remarks below).
Remarks: Restore the applicant’s grade to Spcialist/E-4.

SECTION B - CERTIFICATION

Approval Authority:


THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




SUZANNE WALKER 8
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: 1999025337 INDEX NUMBERS: A9218
Date of Review: 990505 A9322
Character of Service: UD A0100
Date of Discharge: 951116
Authority: AR 135-178 C7
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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