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ARMY | DRB | CY2000 | 2000035286
Original file (2000035286.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): 960506

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: 6 Years NCOPDR
b. Entry date: 940910 ASR
c. Age: 35 Years DOB: 581204 C/Ach(2)
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 113 3. Highest grade achieved:
f. Length of Service: E5
1 Year(s) 6 Month(s) 9 Day(s)

4. Performance evaluations:
See OMPF

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

5. Periods of unauthorized absence:

Status Inclusive dates
         AWOL 950812-950814; 950922-950927; 951019-951118; 960221-960229

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment:

         Date     Offense(s)
         960325 AWOL, four specifications (950812-950815); (950922-950928); (951019-951119); (960221-960301); willfully disobey (950922); disrespect in language toward SFC (950922); assault SSG (950922)

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
         USNR 840409 841012 HD
         USN 841013 890130 HD
         ARNGUS 890131 901017 HD
         INARNG 900701 901017 NIF



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 3 March 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—patterns of misconduct, with an under other than honorable conditions discharge. He was advised of his rights. The applicant acknowledged notification, waived legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board and did not submit a statement on his own behalf. The unit commander subsequently recommended separation with an under other than honorable conditions discharge. On 2 May 1996 the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with an under other than honorable conditions discharge. The applicant was to be reduced to the lowest enlisted rank.

         b. On 6 May 1996, the applicant was discharged. At the time of discharge, the applicant had 1 year, 6 months, and 9 days service on his current enlistment and 48 days lost time.

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 991214, with one (255) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE
         C-1: DD Form 149, dated 990430.

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:
1. Video recording site: Los Angeles, CA on 2 March 2000.
2. Board site: Washington, DC on 10 March 2000 .

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

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: Memorandum with 252 enclosures.

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. After careful review of the applicant’s record, the Board determined that the separation authority had proper UCMJ authority over the applicant. The Board found no evidence of arbitrary or capricious actions by the command. 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.
         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 carefully reviewed 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 evidence of record indicates that the applicant accepted nonjudicial punishment for the following: four periods of AWOL, willfully disobeying an order, disrespectful language towards a senior noncommissioned officer, and assaulting another soldier. In addition, the applicant was counseled on numerous occasions for failing to be at his appointed place of duty. The Board concluded that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated his misconduct. Before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about the deficiencies which could lead to separation. The applicant did not respond to these efforts nor did the he exercise his rights to appear before a board of officers prior to his separation. 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 2 3

         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       

                                 
Ms. McKim-Spilker
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: 2000035286 INDEX NUMBERS: A9217
Date of Review: 000310 A9333
Character of Service: UD A9229
Date of Discharge: 960506 A9237
Authority: AR 635-200 C14 A9235
Reason: A6750 A0100
Results of Board Action/
Vote/Affirmation: NC 3-2 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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