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ARMY | DRB | CY2000 | 2000042731
Original file (2000042731.rtf) Auto-classification: Approved
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): 980408

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:
                            AAM
a. Period entered for: NIF GCMDL
b. Entry date: 950806 NDSM
c. Age: 24 Years DOB: 710803 ASR
d. Educational level: HS Grad OSR
e. Aptitude area score:
          GT: 87 3. Highest grade achieved:
f. Length of Service: E4
2 Year(s) 7 Month(s) 6 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 980123-980129;

         Mil conf 0

         Civil conf 0

         Other 0


6. Nonjudicial punishment:

         Date     Offense(s)
         970804   Through neglect miss the movement of Service Battery, 1/37 th FA, (970523); disobeyed a lawful order from a SGT (970523), (970601), two specifications; and failed to go to your appointed place of duty, four specifications (970621); (970601); (970527); (970505).


7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: The applicant has an approved Bar to Reenlistment in file, dated (970911).

SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         USAR     900803   901001   NA
         ADT      901002   910208   Honorable
         RA       921013   950805   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 17 September 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, with an under other than honorable conditions discharge. He was advised of his rights. The applicant 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 in his own behalf. The unit commander subsequently recommended separation from the service, and 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 5 November 1997, the applicant was notified to appear before a board of officers. On 5 January 1998, the board of officers met; applicant appeared with counsel. The board recommended separation with an under other than honorable conditions discharge. On 11 February 1998, the separation authority approved the board’s findings and recommendations, waived further rehabilitative efforts and directed that the applicant be discharged with an under other than honorable conditions discharge.

         b. On 8 April 1998, the applicant was discharged. At the time of discharge, the applicant had 2 years, 7 months, and 6 days, service on his current enlistment and 5 years, 5 months and 19 days, total time in service.

         c. The unit commander recommended the applicant be separated from the Army due to his failing to make various formations, missing movement, failing to follow instructions, disobeying a lawful order, failing to meet financial obligations, and making false official statements.

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 000517, with thirty (30) 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, DC on 28 June 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (15) The characterization of service was too harsh.
         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 applicant has not submitted an issue of propriety and the ADRB has not otherwise relied upon an issue of propriety to change the discharge.

          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:

 (15) The issue is accepted. There was a full consideration of all service including the infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board determined that the characterization of service was inequitable based on the applicant’s overall length and quality of service. The applicant's misconduct was mitigated by service of sufficient merit to warrant an upgrade of the discharge being reviewed. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it.
(1-14) The issues are rejected. The Board noted the applicant’s contentions, in effect, that his command acted in an arbitrary and capricious manner. However, the Board found no evidence of arbitrary or capricious actions by the command. Specifically, the record does not support any type of cover-up or racial discrimination by the chain of command. The evidence of record shows the applicant had several counseling statements and was barred from reenlistment for his numerous acts of misconduct. The evidence of record further shows that before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about the deficiencies, which could lead to separation. The evidence of record established that the applicant was afforded a reasonable opportunity to overcome noted deficiencies. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. The Board determined that the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable characterization of service. Finally, eligibility for veteran's benefits is not within the purview of this Board. See response to issue (15) above.

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                       .

         ( )      Equitable.
         ( X )    Inequitable as to characterization. Change characterization to General, Under Honorable Conditions .
         ( )      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 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       

                                 
MS. WADE
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 30 June 2000

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 General, Under Honorable Conditions.
( X )   Other (see remarks below).
Remarks: Restore grade to specialist/E-4.
SECTION B - CERTIFICATION

Approval Authority:


WILSON A. SHATZER
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




EARNEST C. SMITH, JR.
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: 2000042731 INDEX NUMBERS: A9218
Date of Review: 000628 A0100
Character of Service: UD A9307
Date of Discharge: 980408 A9411
Authority: AR 635-200 C14 A9311
Reason: A6750 A9315
Results of Board Action/
Vote/Affirmation: GD 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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