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ARMY | DRB | CY1999 | 1999026077
Original file (1999026077.rtf) Auto-classification: Denied
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): 961015

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(3)
a. Period entered for: 4 Years (2 mos ext) GCMDL(2)
b. Entry date: 880902 (920110) NDSM
c. Age: 38 Years DOB: 500618 NCOPDR(3)
d. Educational level: 14 Years
e. Aptitude area score:
          GT: 119 3. Highest grade achieved:
f. Length of Service: E6
4 Years 0 Months 19 Days

4. Performance evaluations:
See OMPF

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL

         Mil conf

         Civil conf 920409-920429; 921102-961015

         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: Applicant served on active duty as a commissioned officer from 24 June 1977 to 1 September 1988, and attained the rank of Captain/0-3.
SECTION B - Prior Service Data

Other discharge(s):

          Service   From      To        Type Discharge
         RA 721027 770623 HD
         AUS 770624 880901 HD
(USAR-Commissioned Officer)



PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
         a. The evidence of record shows that on 28 April 1993, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—conviction by civil court, with a recommendation for an under other than honorable conditions (UOHC) discharge. The applicant was advised of his rights, waived legal counsel, was advised of the impact of the discharge action, and elected not to submit a statement in his own behalf. The intermediates commander reviewed the proposed discharge action and recommended approval of the separation action with a UOHC discharge. On 13 May 1996, an administrative separation board (ASB) of officers convened to consider the applicant’s case, with the applicant’s counsel present and the applicant participating by speaker phone. The ASB recommended separation for misconduct and that the applicant receive a UOHC discharge. On 14 August 1996, the general court-martial convening authority (GCM) recommended approval of the findings and recommendations of the ASB, and forwarded the case to Department of the Army (DA) for final approval based on the applicant having completed over 18 years of service. On 5 September 1996, DA directed that applicant be discharge, under the provisions of Paragraph 14-5, AR 635-200, prior to final action on his civil court appeal, and that Paragraph 14-12c be cited as the authority for separation; that a characterization of service of UOHC be given; and that the applicant be reduced to the lowest enlisted rank.

         b. On 15 October 1996, the applicant was discharged with a UOHC. At the time of discharge, the applicant had completed 4 years and 19 days of his current enlistment, a total of 19 years, 10 months, 24 days of active military service, and having had accrued 4 years and 3 days of time lost due to civil confinement.

         c. The evidence of record shows that the applicant was convicted in civil court of burglary in the second degree, assault with the intent to commit sexual abuse resulting in bodily injury, and of false imprisonment. He was sentenced to a prison term in excess of 15 years; and his unit commander initiated separation action based on the applicant’s civil conviction, under the provisions of Paragraph 14-5 a (2), AR 635-200. This provision of the regulation allows discharge processing, without regard to suspension or probation, when a civil conviction results in a sentence to confinement in excess of 6 months. The evidence of record indicates that the applicant was afforded all rights associated with the action. His case was heard by an ASB which recommended a UOHC discharge, the GCM forwarded the separation action to DA, the approval authority because the applicant had completed over 18 years of service, with a recommendation for approval of the ASB findings and recommendations. DA approved the separation proceedings and the findings and recommendations of the ASB, and directed that the applicant receive a UOHC discharge and be reduced to the lowest enlisted grade. A review of the applicant’s case processing revealed the following facts: the applicant’s original expiration of term of service was
1 November 1992; he accrued 21 days of time lost due to civil confinement in April 1992 which resulted in an adjustment of his ETS to 22 November 1992; he was placed in an ordinary leave status between 25 October and 13 November 1992; and then he was sentenced and imprisoned by civil authorities on 2 November 1992. A review and computation of the applicant’s periods of active federal service reveals first that he was never involuntarily held beyond his ETS, and second that he never attained the necessary 20 years of credible active military service necessary for retirement. Furthermore, by law, soldiers who have completed 20, but less than 30 years of active federal service may request retirement but that their retirement is at the discretion of the Secretary of the Army, and not automatic. The facts and contentions raised by the applicant in his application were all available to the ASB when it heard his case. These issues were properly considered and addressed at that time. Furthermore, it is clear that all these issues were made part of the official record of the discharge proceedings which were ultimately reviewed at Department of the Army.
Finally, there is no indication in the available records that the applicant was denied any rights associated with the separation action; or that any action taken by the chain of command was in contravention of any of the applicable Army regulations.

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 990419, with six (6) 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 16 June 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 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 contention that, in effect, the administrative separation board did not have jurisdiction over his case because it had not requested permission to hold him beyond his expiration of term of service (ETS); and that his lost time should have been covered by the ordinary leave which would have given him over the
20 years of active service necessary for retirement. The evidence of record shows that the applicant had accrued 21 days of time lost due to civil confinement in April 1992, and that at that time his original ETS of
1 November 1992 would have been adjusted to 22 November 1992 . This adjusted ETS was beyond the date of his civil conviction sentencing and imprisonment, which took place on 2 November 1992; and was after the end of his ordinary leave, 13 November 1992. Therefore, the Board concluded that the applicant was never involuntarily held beyond his ETS for administrative discharge processing as defined in AR 635-200. Further, although periods of service are not within the purview of this Board, the contention that he had served over 20 years of active duty does not appear to be correct; however, even if true, this would not have automatically resulted in his retirement. By law, a soldier who has completed 20, but less than 30 years of active federal service, may at the discretion of the Secretary of the Army be retired at his or her request. It is clear, as evidenced by Department of the Army’s approval of the applicant’s separation, that the Secretary of the Army did not intend to approve retirement in the applicant’s case. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

          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.
(3) and (4) The issues are rejected. The Board noted the applicant’s contentions that, in effect, the DD Form 214 he signed prior to departing Fort Benning, Georgia was changed in order to punish him; and that his discharge was inequitable because it was based on an isolated incident. However, the applicant’s conviction by civil authorities obligated military authorities to consider him for discharge. Because of the civilian conviction, the applicant diminished the quality of his service below that meriting a fully honorable or general discharge. The Board noted that an Administrative Separation Board was properly conducted and that the separation authority, Department of the Army, determined that the specific offenses warranted separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated his misconduct.

 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: 1999026077 INDEX NUMBERS: A0101
Date of Review: 990616 A0201
Character of Service: UD A9217
Date of Discharge: 961015 A9235
Authority: AR 635-200 C14
Reason: A6100
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.      PO      X          X    





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