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ARMY | DRB | CY1999 | 1999032547
Original file (1999032547.rtf) Auto-classification: Denied
PART II - APPLICATION DATA

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

1. Character of Discharge: Under Other Than Honorable Conditions

2. Date of discharge (or REFRAD): 880218

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

          b. Reason: Civilian Conviction
4. Prior review(s): Records/990120


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            ASR
a. Period entered for: 3 Years
b. Entry date: 860305
c. Age: 18 Years DOB: 670701
d. Educational level: GED
e. Aptitude area score:
          GT: 107 3. Highest grade achieved:
f. Length of Service: E2
1 Year(s) 2 Month(s) 27 Day(s)

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

         Mil conf

         Civil conf 870602-880218

         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: 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. Evidence of record shows that on 23 October 1987, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of conviction by civil court, with an under other than honorable conditions discharge. The applicant was advised of his rights, waived legal counsel, was advised of the impact of the discharge action, waived a hearing by a board of officers and elected not to submit a statement in his own behalf. The unit commander subsequently recommended waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 3 February 1988, the separation authority directed that the applicant be separated with an under other than honorable conditions discharge.

         b. On 18 February 1988, the applicant was discharged with an under other than honorable conditions discharge. At the time of discharge, the applicant had completed 1 year, 2 months, and 27 days of military service and had accrued
262 days of time lost due to civil confinement.

         c. The record shows the applicant completed a little over a year of service and that the highest rank he achieved while on active duty was private/E-2. There is no recorded history of disciplinary problems prior to the incident, which ultimately led to his discharge. The applicant was convicted of auto theft and the unauthorized use of a bank teller card, which resulted in his being sentenced to 2 years of confinement. He was processed for separation by reason of his civil court conviction. The applicant was afforded all rights associated with the action and authenticated a statement by which he waived his right to have his cased heard by an administrative separation board.

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 990205, with four (4) 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 Examination
         ( ) Tender Offer

         c. Review/hearing location and date:
1.       Video Recording Site at Tampa, Florida on 15 February 2000 .
2.       Hearing Examination at Washington, DC on 25 February 2000 .
         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: ( X ) Yes ( ) No
        
2. Exhibit(s) submitted at hearing: Applicant amended his second issue and
submitted five 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.

 (2) The issue is rejected. The Board carefully examined the applicant’s record of service and issues surrounding his discharge. The Board noted the applicant’s contention, in effect, that he was misdirected in the proper way to complete his discharge papers and was not afforded his right to an administrative separation board. However, the evidence of record shows that the applicant authenticated two documents with his signature in which he indicated he understood all his rights and waived both his rights to consulting counsel and to consideration of his case by an administrative separation board. The evidence of record shows that the applicant was convicted by civil authorities of auto theft and unauthorized use of a bank teller card and sentenced to two years civil confinement. The Board determined that the discharge proceedings were conducted in accordance with laws and regulations applicable at the time and that the rights of the applicant were fully protected. Additionally, the Board found the applicant to be 20 years old at the time of the offenses and no regulatory basis which would prohibit his separation as a youthful offender. Furthermore, the action of one service board does not establish precedent or policy for another board. The ADRB considers each case independently and on its own merits.

          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 (3) The issues are rejected. The Board again 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. Having examined all the circumstances, the Board determined that the applicant's misconduct did indeed adversely affect the quality of his service, bring discredit on the Army, and was prejudicial to good order and discipline. This misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable or a general discharge. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

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. RIVERA
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: 1999032547 INDEX NUMBERS: A9235
Date of Review: 000225 A9217
Character of Service: UD A0139
Date of Discharge: 880218 A0100
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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