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ARMY | DRB | CY2000 | 2000035960
Original file (2000035960.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): 970307

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:
                            GCMDL
a. Period entered for: 4 Years NCOPDR(2)
b. Entry date: 911230 SWASMw/2BSS
c. Age: 24 Years DOB: 671218 KLM
d. Educational level: HS Grad C/Ach(3)
e. Aptitude area score:
          GT: 116 3. Highest grade achieved:
f. Length of Service: E5
3 Year(s) 9 Month(s) 21 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

         Mil conf

         Civil conf 951021-970307

         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

Other discharge(s):

          Service   From      To        Type Discharge
         RA 880324 911229 HD



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 4 January 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—civil conviction, with an under other than honorable conditions discharge. He was advised of his rights. The applicant acknowledged notification, consulted with legal counsel, was advised of the impact of the discharge action, requested a hearing by a board of officers and did not submit a statement on his behalf. The unit commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 22 January 1997, the board of officers met; the applicant appeared with counsel. The board recommended separation for misconduct-conviction by civil court with a characterization of under other than honorable conditions. On 14 February 1997, the separation authority directed that the applicant be discharged with an under other than honorable conditions discharge.

         b. On 7 March 1997, the applicant was discharged. At the time of discharge, the applicant had 3 years, 9 months, and 21 days of service on his current enlistment and 7 years, 6 months, and 20 days total time in service.

         c. The Ontario County Court in the State of New York convicted the applicant of 2 nd degree murder and 1 st degree manslaughter for the death of his stepdaughter.

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 000118, with four (4) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE
         C-1: DD Form 149, dated 990901.

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 22 March 2000

         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 record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that his discharge was improper. The Board noted that an Administrative Separation Board was properly conducted and that the separation authority determined that the specific offenses warranted separation. However, the evidence of record indicates the applicant’s discharge was held in abeyance pending the outcome of his appeal 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) The issue is rejected. The Board carefully examined the applicant’s record of service during the period of enlistment under review. Although the applicant was not pending any type of military disciplinary action, Army Regulation 635-200, Chapter 14, Paragraph 14-5d states a soldier convicted by civil court will be reduced or considered for reduction as it applies to reduction in grade for misconduct. The applicant’s conviction by civil authorities obligated military authorities to consider the applicant for discharge. The Board concluded that because of the civilian conviction, the applicant diminished the quality of his service below that meriting a fully honorable or 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       

                                 
MRS. WADE
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: 2000035960 INDEX NUMBERS: A9227
Date of Review: 000322 A9445
Character of Service: UD A9233
Date of Discharge: 970307
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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