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ARMY | DRB | CY1999 | 1999026167
Original file (1999026167.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): 970508

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:
                            NDSM
a. Period entered for: 3 Years 17 Wks ASR
b. Entry date: 960515 PRCHT Badge
c. Age: 20 Years DOB: 760101
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 105 3. Highest grade achieved:
f. Length of Service: E2
0 Years 10 Months 27 Days

4. Performance evaluations:
NONE

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

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL 0

         Mil conf 970225-970321;

         Civil conf 0

         Other 0


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data:

         a. SCM:
                  Date Offense(s)
970225 Reckless driving; Wrongful use of a controlled substance;
        
         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 10 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, declined his right to legal counsel, 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 from the service, and that further rehabilitative efforts be waived. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a GD. On 11 April 1997, the separation authority waived further rehabilitative efforts, and directed that the applicant be separated with a GD.

         b. On 8 May 1997, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 10 months and 27 days of active military service, and had accrued 27 days of time lost due to confinement.

         c. The applicant’s record shows that he completed just 10 months and 27 days of his 3 year enlistment, and that he never advanced beyond the rank of private/E-2. There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the record. His disciplinary record includes his trial and conviction by summary court-martial on 27 February 1997, for reckless driving, and the wrongful use of a controlled substance. His sentence for these offenses included a reduction in rank to private/E-1; forfeiture of $600.00; and confinement for 30 days. The unit commander initiated separation action on the applicant based on the commission of a serious offense, citing the reckless driving and wrongful use of a controlled substance offenses as the basis for taking the action. The unit commander also recommended that counseling and rehabilitative requirements be waived in the applicant’s case. This recommendation was made because, in his opinion, rehabilitation would not be in the best interest of the Army, as it would not produce a quality soldier. In accordance with the applicable regulation, the separation authority evaluated and approved the unit commander’s request for waiver of rehabilitative requirements and directed that the applicant be issued a GD.

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 990428, with one (1) enclosure.
         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, DC on 28, June 1999 .

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

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( X ) Yes ( ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: Seven (7) additional documents.

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), (2), (3), (4), (5), (6), (7), and (8) The issues are rejected. The Board noted the contentions of the applicant and his counsel that, in effect, adequate rehabilitation efforts were not made; that the commanding officer had no basis to conclude rehabilitation would not be in the best interest of the Army; that the applicant should have been permitted to engage in rehabilitation as required by regulation; that the unit commander’s report was improperly used; that the unit commander’s report was inaccurate; that the soldier received inadequate counseling; and that the applicant’s waiver was invalid. However, the Board found no evidence of record or independent evidence submitted by the applicant and his counsel to support these claims. The Board determined that the applicant’s discharge proceedings, to include his waiver of his right to counsel, were conducted in accordance with applicable law and regulations, and found no evidence of arbitrary or capricious actions by the command. The evidence of record shows that the applicant was properly notified by the unit commander that separation action was being initiated and the basis for the action being taken. The Board also determined that the unit commander’s recommendation for, and the separation authority’s approval of a waiver of rehabilitation requirements were accomplished in accordance with the applicable provisions of the regulation. The Board was satisfied that all requirements of law and regulation were met, and that 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.
         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.

 (9) The issue is rejected. The Board noted the contention of the applicant and his counsel that, in effect, the incidents for which the applicant was court-martialed were isolated; that the command failed to permit the applicant to engage in rehabilitation efforts; and that the action was in part, contrary to the recommendation of the applicant’s first line supervisor. The Board carefully examined the applicant's record of service during the period of enlistment under review. There was a full consideration of all faithful and honorable service as well as infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board concluded that the discrediting entries in the applicant's record were not outweighed by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed.

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: 1999026167 INDEX NUMBERS: A0103
Date of Review: 990628 A0113
Character of Service: GD A0139
Date of Discharge: 970508 A0145
Authority: AR 635-200 C14 A0147
Reason: A6730 A9235
Results of Board Action/ A9405
Vote/Affirmation: NC 5-0 A A9411













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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