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ARMY | DRB | CY1999 | 1999025463

Original file (1999025463.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): 961129

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         b. Reason: Misconduct

4. Prior review(s): Records/980825

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 (4 mos ext) ASR
b. Entry date: 940107 (960213) OSR
c. Age: 20 Years DOB: 741231 NATO Medal
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 101 3. Highest grade achieved:
f. Length of Service: E4
2 Years 10 Months 23 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)
         960629 Disobeying a superior commissioned officer (960526)
         961023 Disrespectful in language toward SGT (961013); willfully disobey (961015); unlawfully push SPC (961015);

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(s) (951004); (960917)

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         USAR 920715 940106 HD
         IADT 930624 931102 HD

PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 28 October 1996, 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 recommendation for 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, and elected not to submit a statement in his own behalf. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a GD. The separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a GD.

         b. On 29 November 1996, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 2 years, 10 months, and 23 days of his current enlistment, and a total of 3 years, 4 months, and 7 days of credible military service.

         c. The applicant’s records reflect that he completed almost 3 years of active duty and that the highest rank he attained while on active duty was specialist/E-4. The applicant’s disciplinary record includes his acceptance of two Article 15’s: the first on 29 June 1996, for disobeying a lawful order from a commissioned officer which resulted in a reduction in rank to private first class/E-3; and the second on 23 October 1996, for being disrespectful in language toward a noncommissioned officer; for disobeying the lawful order of a command sergeant major; and for assault consummated by a battery. The applicant had been barred from reenlistment on two separate occasions: the first time on 12 October 1995, for a delinquent account and writing a bad check; and the second time on 18 September 1996, based on his overall disciplinary history. There is also an extensive record of counseling contained in the record for numerous disciplinary infractions throughout the applicant’s period of service. The unit commander processed the applicant for separation based on the commission of a serious offense, citing the incidents for which the applicant received his October 96 Article 15, as the basis for the action.

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 one (1) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: DD Form 293, dated 990517.

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:
         ( ) Records review ( X ) Hearing

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

         c. Review/hearing location and date: Washington D.C. on 17 May 1999 .

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
         Counsel ( ) Yes ( X ) No

         e. Applicant testified: ( X ) Yes ( ) No

         f. Counsel presentation: ( ) Yes ( X ) No

         g. Witness(es) testified: ( ) Yes ( X ) No

2. Exhibit(s) submitted at hearing: Five (5) additional issues.

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 ( 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 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) The issue is rejected. The Board noted the applicant’s contention that, in effect, he wishes to reenlist in the Army and his reentry code of 3 prevents this. However, the Army Discharge Review Board is not empowered to empowered to return former service members to active duty and cannot change the applicant’s reentry eligibility (RE) code. To obtain a change in an RE code, the applicant should provide supporting documentation to justify any change and submit the request to the Commander, US Army PERSCOM, ATTN: TAPC-EPR-P, 2461 Eisenhower Avenue, Alexandria, Virginia 22331-0450. The Board noted that RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. To obtain a waiver for reenlistment, the applicant should contact a local Army recruiter for assistance.

(2), (3), (4), and (5) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his chain of command did not do anything to help him with his marital problems; that the chain of command unfairly placed the blame for everything on him; that given his situation, the chain of command should have attempted to assist him in solving his problems, and that he was not seen by a mental health counselor until he was being separated. However, after carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board concluded that the applicant had many legitimate avenues through which to obtain assistance or relief with his marital problems, without committing the misconduct which led to the separation action under review. Further, 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. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.
’s record of service

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


MR ADRIANCE
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: 1999025463 INDEX NUMBERS: A9217
Date of Review: 990517 A9307
Character of Service: GD A0100
Date of Discharge: 961119
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 | 1999025463

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