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ARMY | DRB | CY1999 | AR1999023750
Original file (AR1999023750.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): 941006

3. Authority for separation:

         a. Regulation: Chapter 13, AR 635-200

          b. Reason: Unsatisfactory Performance
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 17 wks ASR
b. Entry date: 920729
c. Age: 18 Years DOB: 740518
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 124 3. Highest grade achieved:
f. Length of Service: E3
2 Years 2 Months 8 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)
         931217 Making a false official statement with the intent to deceive (931019); stealing property, valued at about $2.00, from AAFES (931104)
         940607 FTG (940524)
         940720 (Summarized) FTR, two separate incidents, (940719)

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
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 6 September 1994, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l3, AR 635-200, by reason of unsatisfactory performance, with a recommendation for a general, under honorable conditions discharge (GD). The applicant was advised of his rights, declined legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf. On
6 September 1994, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a GD.

         b. On 6 October 1994, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 2 years, 2 months, and 8 days of active military service.

         c. The applicant’s record shows that he completed a little over 2 years of service and that the highest rank he attained while on active duty was private first class/E-3. There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the record. However, there is an extensive history of disciplinary infractions which include the applicant’s acceptance of three Article 15’s: the first on 17 December 1993, for making a false official statement and for stealing property from AAFES which included his reduction to private/E-2; the second on 7 June 1994, for failure to go to his prescribed place of duty which included his reduction in rank to private/E-1; and the third on 20 July 1994, summarized, for two specifications of failure to report to a physical therapy appointment and failing to complete corrective training. The applicant’s unit commander cited the applicant’s disciplinary history as the basis for processing him for separation for unsatisfactory performance. The evidence of record shows the applicant underwent a complete physical examination on 6 August 1994 which documented no physical profile limitations, and he was cleared for separation by competent medical authority.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. Army policy states that a general discharge, under honorable conditions is normally considered appropriate, but an honorable discharge may be granted in meritorious cases.
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 990209, with nine (9) 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 14 April 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 ( 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, the reason for his discharge should have been medical based on a knee injury which has been verified by the disability award granted him from the Department of Veterans Affairs (VA). By law, the VA is permitted to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The Board, being convinced that the reason for discharge was both proper and equitable, voted not to change it.

(2), (3), (4), (5), (6), (7), (8), (9), and (10) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his discharge was unjust because it was based on isolated minor infractions; that his new commander orchestrated a harassment campaign against him; that his positive contributions to the Army outweighed his minor infractions; that marital problems impaired his ability to serve; that he was victimized by racial prejudice; that his discharge was a reprisal for his threat to go to the Inspector General; that his right to submit statements in his own behalf was violated; and that it is unjust for him to continue the effects of his GD. However, after carefully examining the applicant's record of service during the period of enlistment under review, 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 applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. Finally, the Board concluded that the applicant’s misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge. The Board, being convinced that the characterization of service was both proper and equitable, voted to deny relief.

 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: 1999023750 INDEX NUMBERS: A9217
Date of Review: 990414 A9221
Character of Service: GD A9307
Date of Discharge: 941006 A9315
Authority: AR 635-200 C13 A9321
Reason: A4900 A9333
Results of Board Action/ A9409
Vote/Affirmation: NC 5-0 A A9411
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.      Mbr      X          X    

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