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ARMY | DRB | CY1999 | 1999026178

Original file (1999026178.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): 980317

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:
                           ASR
a. Period entered for: 4 Years
b. Entry date: 960918
c. Age: 19 Years DOB: 770916
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 121 3. Highest grade achieved:
f. Length of Service: E3
1 Year 6 Months 0 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)
         970415 Wrongfully drinking under the age of 21 (970228)
         970929 Wrongfully consuming alcohol under the age of 21 (970816)

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

Other discharge(s):

         Service From      To        Type Discharge
         USAR 951122 960417 UNCHAR

PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

         a. Evidence of record shows that on 20 January 1998, 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 elected not to submit 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 17 February 1998, the separation authority directed that the applicant be discharged with a GD.

         b. On 17 March 1998, the applicant was discharged with a GD. At the time of discharge, the applicant had completed 1 year and 6 months of active military service.

         c. The applicant’s record shows that he completed a year and ½ of service and 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. His disciplinary record includes his acceptance of two Article 15’s: the first on 15 April 1997, for drinking alcohol while under the age of 21 which included a reduction in rank to private/E-1; and the second on 29 September 1997, for wrongfully consuming alcohol while under the age of 21. The applicant was enrolled in the Army Drug and Alcohol Prevention Control Program (ADAPCP) on 3 March 1997 based on an incident of being drunk and disorderly, driving under the influence of alcohol, and underage drinking. On 18 August 1997, he was involved in another alcohol related incident which caused the ADAPCP Clinical Director to recommend to the unit commander that the applicant be declared a rehabilitation failure and that necessary administrative action be taken. The unit commander processed the applicant for separation based on a pattern of misconduct, citing the incidents outlined above and another incident of drinking alcohol under the age of 21 on 29 September 1997, as the basis for taking the action.

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 990510, 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 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 applicant correctly revealed that a rehabilitation transfer was not formally waived in writing by the separation authority. Notwithstanding this, the Board concluded that the rights of the applicant were not prejudiced by this error. The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by enrolling him in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), providing counseling, and by the imposition of nonjudicial punishment; and that the applicant failed to respond appropriately to these efforts. Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error. The applicant had a record of misconduct and substandard performance of duty with few significant favorable entries in the record. The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made. 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.

(2), (3), and (4) The issues are rejected. The Board noted the applicant’s contentions that, in effect, he was only involved in two alcohol related incidents, not the four listed by the unit commander in his recommendation for separation; that he was counseled that he would receive a Chapter 9 discharge; and that he was counseled for separation based on personality disorder and misconduct or poor duty performance, but ultimately was discharged for alcohol. However, after carefully examining the applicant’s record of service for the period of enlistment under review, the Board found that before initiating action to separate the applicant, the command ensured that he was appropriately counseled about the deficiencies which could lead to separation, and made an assessment of the applicant's potential for becoming a fully satisfactory soldier. The Board found that the applicant was afforded a reasonable opportunity to overcome his noted deficiencies. As he did not subsequently conform to required standards of discipline and performance, the command appropriately determined that he did not demonstrate the potential for further military service.

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 1 4

         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: 1999026178 INDEX NUMBERS: A0147
Date of Review: 990609 A9217
Character of Service: GD A9329
Date of Discharge: 980317
Authority: AR 635-200 C14
Reason: A6700
Results of Board Action/
Vote/Affirmation: NC 4-1 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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ARMY | DRB | CY1999 | 1999026178

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