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ARMY | DRB | CY1999 | 99031508
Original file (99031508.rtf) Auto-classification: Approved
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): 970708

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:
                            NONE
a. Period entered for: 3 Years
b. Entry date: 970107
c. Age: 23 Years DOB: 731128
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 102 3. Highest grade achieved:
f. Length of Service: E4
0 Year(s) 6 Month(s) 2 Day(s)

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)
         970509 Willfully disobey, two specifications (970411)

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
         RA 910730 970106 HD



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 2 June 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—pattern of misconduct. He was advised of his rights. The applicant acknowledged notification, consulted with legal counsel, and was advised of the impact of the discharge action. He requested to personally appear and have his case considered by an administrative separation board and submitted a statement on his 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 a general, under honorable conditions discharge (GD). On 19 June 1997, the separation authority directed that the applicant be discharged with a general discharge.

         b. On 8 July 1997, the applicant was discharged with a general, under honorable conditions discharge. At the time of discharge, the applicant had
6 months, and 2 days service on his current enlistment and 6 years, 6 months and 11 days total time in service.

         c. The unit commander recommended the applicant be separated from the Army because the applicant had a summarized Article 15 for disobeying his First Sergeant and a company grade Article 15 for disobeying a noncommissioned officer. He further stated that the applicant had numerous counseling statements for disobeying orders and failing to report to his appointed place of duty. Although the applicant requested a personal appearance before an administrative separation board, he was not entitled to one.

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 990920.
         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, DC on 27 October 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:
Board Issue: (2) The discharge was improper.

         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:

 (2) The issue is accepted. The Board carefully examined the applicant’s record of service during the period of enlistment under review. The Board noted that the applicant requested a hearing by a board of officers (Administrative Separation Board). Under the provisions of Army Regulation 635-200, a soldier with over six years of creditable military service is entitled to a board of officers. The Board found no evidence that the applicant had or waived a board of officers. The Board found the command's failure to provide the applicant an opportunity to appear before a board constituted a prejudicial error to the rights of the applicant. Accordingly, the Board voted to change the reason for separation to Secretarial Authority and the characterization of service to fully honorable.
         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) See response to paragraph 3, below.
3. Response(s) to item(s) not addressed as decisional issue(s):

 Inasmuch as the Board voted to grant the full relief requested, response to remaining issue is neither required nor rendered.

PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.       Board conclusion(s):

         The discharge was:

          ( )      Proper.
         ( X )    Improper as to characterization. Change characterization to Honorable .
         ( X)     Improper as to reason. Change reason to Secretarial Authority under Chapter 5, AR 635-200 .

         ( )      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 5 0
Characterization 5 0

         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       

                                 
MRS. WADE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 29 October 1999

The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I directs that the ARBA Support Division-St Louis issue a new DD Form 2l4 to the applicant which reflects the following directed change(s):

 ( X )   Change characterization of discharge to Honorable .

( X )   Change reason and authority for discharge to
         Secretarial Authority, AR 635-200 .

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: 1999031508 INDEX NUMBERS: A0212
Date of Review: 991027 A0100
Character of Service: GD A9221
Date of Discharge: 980708
Authority: AR 635-200 C14
Reason: A6700
Results of Board Action/
Vote/Affirmation: HD 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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