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ARMY | DRB | CY1999 | AR1999024778

Original file (AR1999024778.rtf) Auto-classification: Approved

PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: HD

2. Date of discharge (or REFRAD): 970512

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         b. Reason: Misconduct

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: 5 Years (4 mos ext) AAM(2)
b. Entry date: 920115 (931118) GCMDL
c. Age: 24 Years DOB: 670604 NDSM
d. Educational level: Col Grad NCOPDR
e. Aptitude area score: ASR
         GT: 124 OSR
f. Length of Service: 3. Highest grade achieved:
5 Years 3 Months 28 Days E5

4. Performance evaluations:
See OMPF

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)
         970225 Derelict in the performance of your duties, divers occasions from (951206 to 970117); willfully used your card on five occasions to obtain cash from ATMs, lift tickets, electronics or appliances and for purposes unrelated to official government travel; wrongfully appropriated about $558.00, in US currency, the property of American Express Corporation (951206 to 970117)

         960930 Administrative : Memorandum of Reprimand for professional
                                    dereliction for being involved in a verbal and
                                    physical altercation at his quarters.

7. Court-Martial data:

         a. SCM:
                  Date Offense(s)


         b. SPCM:
                  Date Offense(s)

         c. GCM:
                  Date Offense(s)

8.       Remarks:

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         USAR/MP 890923 900127 HD

PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. The evidence of record shows that on 8 April 1997, 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, voluntarily waive consideration of my case by an administrative separation board contingent upon my receiving a characterization of service or description of separation no less favorable than honorable, was advised of the impact of the discharge action, and elected not to submit a statement in his own behalf. The unit commander subsequently recommended separation with a GD. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions (UOHC) discharge. On 30 April 1997, the separation authority directed that the applicant be discharged under the terms of his conditional waiver and that he receive an honorable discharge.

         b. On 12 May 1997, the applicant was discharged with an honorable discharge. At the time of discharge, the applicant had completed 5 years, 3 months, and
28 days of active military service.

         c. The applicant’s record shows that he completed over 5 years of service; attained the rank of sergeant/E-5; and had earned the Army Commendation Medal, two Army Achievement Medals; and the Good Conduct Medal. His disciplinary record includes his acceptance of an Article 15 on 25 February 1997, which he did not appeal, for being derelict in the performance of his duties by wrongfully using his credit card; for willfully using his government credit card to obtain cash from automated teller machines to purchase items not related to government travel, and for wrongfully appropriating $558.00, which resulted in his reduction to the rank of specialist/E-4. He was processed for separation for the commission of a serious offense based on these incidents, along with an incident of being cited by civilian authorities for driving under the influence of alcohol. The applicant, after consulting counsel completed a conditional waiver of his rights contingent on receiving a characterization of service no less favorable than honorable. The separation accepted the terms of the applicant’s conditional waiver and he was separated with an honorable discharge.

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 990318, 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:
         ( ) 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:

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: ( ) 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 parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

(3) The issue is accepted. The Board concluded that the separation authority correctly directed that the applicant be separated, under the provisions of Paragraph 14-12c, for the commission of a serious offense; however, that someone in the discharge process erroneously changed the authority for separation to Paragraph 14-12c(2), commission of a serious offense-abuse of illegal drugs, which also resulted in the assignment of incorrect Separation Program Designator (SPD) and Reentry (RE) Codes on the
DD Form 214. Therefore, the Board directed, in Part VII of this document, that the appropriate administrative corrections be made and that the applicant be issued a corrected DD Form 214 (Certificate of Release or Discharge from Active Duty).

         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) and (2) The issues are rejected. The Board noted the applicant’s contentions that, in effect, his reason for discharge should be changed to expiration of term of service, with a corresponding reentry eligibility (RE) code; that his incidents of misconduct did not amount to serious misconduct; and that his discharge was the result of selective enforcement of the rules by his chain of command. However, after carefully examining the evidence of record, the Board concluded that the applicant’s discharge was appropriate. The Board found that the applicant’s separation was approved only after being determined legally sufficient by the Office of the Staff Judge Advocate; in addition, the separation was in accordance with the terms of the applicant’s own conditional waiver. The Board being convinced that the reason for discharge was both proper and equitable, voted to deny relief beyond that already granted in response to issue (3) above.

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

TO: ARBA Support Division-St Louis Date: 21 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 changes:

( X )    Other (see remarks below).

Remarks: Correct the applicant’s DD Form 214 as indicated below:

Block 25: (Authority for Separation): AR 635-200, PARA 14-12c.
Block 26: (Separation Code): JKQ.
Block 27 : (Reentry Code) : RE-3.

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: 1999024778 INDEX NUMBERS: A0156
Date of Review: 990517 A9217
Character of Service: HD A9405
Date of Discharge: 970512 A9445
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 | AR1999024778

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