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ARMY | DRB | CY1999 | 1999026171
Original file (1999026171.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): 970121

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: 950315
c. Age: 19 Years DOB: 750719
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 101 3. Highest grade achieved:
f. Length of Service: E3
1 Year 10 Months 7 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)
         960423 Disrespect in language and deportment toward an NCO (960412); DOLO (960412)
         960702 Disrespect in language and deportment toward an NCO (960612); Disrespect toward an NCO by pushing him. (960612)

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 25 November 1996, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—pattern of misconduct, 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 submitted 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 3 January 1997, the separation authority directed that the applicant be discharged with a GD.

         b. On 21 January 1997, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 1 year, 10 months, and 7 days of active military service.

         c. The applicant’s record shows that he completed over 1 and ½ 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 disciplinary history which includes the applicant’s acceptance of two Article 15’s: the first on 23 April 1996, for being disrespectful in language and deportment toward a noncommissioned officer (NCO) in the execution of his office, his punishment included a suspended reduction to private/E-2, which was vacated based on another incident of disrespect toward an NCO; and the second on 2 July 1996, for treating an NCO with disrespect in language and deportment and for assaulting an NCO which resulted in a reduction to private/E-1.

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 990427, 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 9 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 ( ) 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) and (2) The issues are rejected. The Board noted the applicant’s contention that, in effect, his ability to take care of his family has been impaired because he is unable to get decent work because of his discharge, and
 that his discharge was unfair because he attempted to get reassigned from his unit but was denied; and that at the same time he was being processed for discharge, his son was born prematurely and the chain of command was not understanding of this situation. 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 determined that even if these contentions were true, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct which led to the separation action under review. Further, 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 Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.
(3) The issue is rejected. The Board noted the applicant’s contention that, in effect, his misconduct was the result of his reaction to the chain of command prematurely lifting his medical profiles based on their belief that his medical conditions were false and that he has since been awarded disability by the Department of Veterans Affairs (VA). However, the evidence of record shows that applicant underwent a complete physical examination prior to his discharge and was found fit for retention/separation by competent medical authority. By law, the VA can 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 fitness 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.
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: 1999026171 INDEX NUMBERS: A9217
Date of Review: 990609 A9221
Character of Service: GD A9321
Date of Discharge: 970121 A0100
Authority: AR 635-200 C14
Reason: A6700
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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