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ARMY | DRB | CY1999 | 1999025612
Original file (1999025612.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): 891005

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

          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:
                            ARCOM
a. Period entered for: 4 Years AAM
b. Entry date: 851030 GCMDL
c. Age: 19 Years DOB: 660123 OSR
d. Educational level: 13 Years ASR
e. Aptitude area score:
          GT: 118 3. Highest grade achieved:
f. Length of Service: E4
3 Years 11 Months 6 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)
         890905 Wrongfully used marijuana between (890722 and 890801)

7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: During the review of this case it was discovered that Orders Number 73-9, dated 21 November 1988, was published awarding the applicant the Good Conduct Medal. This award is not documented on the DD Form 214 issued the applicant at discharge; however, correction of the awards portion of the
DD Form 214 is not within the purview of the Army Discharge Review Board (ADRB). The ADRB may only change the characterization and reason for discharge. The proper venue for correction of awards is the Army Board for Correction of Military Records (ABCMR). If the applicant wishes to pursue correction of this item he should make application to the ABCMR utilizing the DD Form l49 enclosed with this application.
SECTION B - Prior Service Data
NONE

Other discharge(s):

          Service   From      To        Type Discharge





PART IV - PREHEARING REVIEW

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

         a. The evidence of record shows that on 18 September 1989, 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. On 27 September 1989, the separation authority directed that the applicant be discharged with a GD.

         b. On 5 October 1989, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 3 years, 11 months, and 6 days of active military service.

         c. The applicant’s record shows that he completed over 3 years and 11 months of his 4 year enlistment, and was only 24 days short of his ETS at the time of his discharge. The highest rank the applicant attained while on active duty was specialist/E-4; he completed an overseas tour in Germany, and he had earned an Army Commendation Medal, two Army Achievement Medals, and the Overseas Service Ribbon. His disciplinary record includes his acceptance of an Article 15 on
5 September 1989 for the wrongful use of marijuana which resulted in his reduction to private/E-2. There are no other recorded disciplinary infractions contained in the available record. However, although the bar to reenlistment certificate and the basis for it are not in the available records, there is a memorandum from the applicant’s unit commander, dated 14 June 1989, requesting that a bar to reenlistment on the applicant be removed; and a 1 st endorsement from the approval authority which approves removing the bar. The unit commander initiated separation action on the applicant, for the commission of a serious offense, just over 30 days prior to the applicant’s normal expiration of term of service. The unit commander citing the applicant’s drug use as the basis for taking 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 990407, with two (2) 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 26 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 Issues: (8) The characterization of service was too harsh.
(9) The narrative reason for discharge is inequitable.
         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.

 (8) The issue is accepted. 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 applicant's generally acceptable personal conduct and performance of duty mitigated his misconduct. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable.

(9) The issue is accepted. Regulations currently in effect list the reason for the applicant’s discharge as misconduct. Accordingly, the Board voted to change the narrative reason on the DD Form 214 to misconduct.

(1), (2), (3), (4), (5), (6), and (7) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his discharge was inequitable because he received awards and decoration; that he received letters of recommendation; that his record of promotions showed he was a good soldier; that he was so close to finishing his service that his discharge was unfair; that he has been a good citizen since his discharge; that he committed only minor isolated offenses; and that his record of AWOL is only a minor isolated offense. However, after carefully examining the evidence of record, 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. Accordingly, the Board found that the reason for discharge was proper and equitable at the time of the applicant’s discharge, and concluded that relief beyond that provided in response to issues (8) and (9) above was not warranted.

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                       .

         ( )      Equitable.
         ( X )    Inequitable as to characterization. Change characterization to Honorable .
          ( X )    Inequitable as to reason. Change reason to Misconduct
                  under Chapter 14, 635-200                                 .
         ( )      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 5 0
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: 28 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 issue a new DD Form 2l4 to the applicant which reflects the following directed change(s):
( X )   Change the characterization of the discharge to Honorable .

( X )   Change the reason and authority for discharge to Misconduct under Paragraph 14-12(c), AR 635-200.


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: 1999025612 INDEX NUMBERS: A9204
Date of Review: 990526 A9206
Character of Service: GD A9212
Date of Discharge: 891005 A9214
Authority: AR 635-200 C14 A9218
Reason: A6770 A9222
Results of Board Action/ A9232
Vote/Affirmation: HD 5-0 A A0100



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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