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ARMY | DRB | CY2000 | 2000044600
Original file (2000044600.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): 941208

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: 6 Years
b. Entry date: 900628
c. Age: 35 Years DOB: 550211
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 118 3. Highest grade achieved:
f. Length of Service: E6
1 Year(s) 10 Month(s) 18 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 0

         Mil conf 0

         Civil conf 920516-941208;

         Other 0


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       810818   850227   Honorable
         RA       850228   900627   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 1 November 1993, the applicant was convicted in The Hardin Circuit Court for the Commonwealth of Kentucky for first degree manslaughter and 2 counts of first degree wanton endangerment. The applicant was sentenced to fifteen (15) years for manslaughter, and to two and one-half (2½ years) for each count of wanton endangerment, to run consecutively with the sentence for manslaughter, for a total of 20 years. On 5 August 1993, 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. He was advised of his rights. The applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, submitted a statement in his own behalf, and stated that he intended to appeal the civil conviction. 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 27 December 1993, the applicant was notified to appear before a board of officers. On 16 February 1994, the board of officers met; his counsel represented the applicant. The board recommended separation with an under other than honorable conditions discharge. On 28 March 1994, the separation authority approved the findings and recommendations of the board and directed that the applicant be discharged with an under other than honorable conditions discharge.

         b. On 8 December 1994, the applicant was discharged. At the time of discharge, the applicant had 1 year, 10 months, and 18 days service on his current enlistment and 10 years, 8 months and 27 days, total time in service and 937 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 000710.
         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 30 August 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.

          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), (10), and (16) The issues are rejected. The Board 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 the infractions of discipline, the extent thereof, and the seriousness of the offenses. The conviction by civil authorities obligated military authorities to consider the applicant for discharge. Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army. Because of the civilian conviction, the applicant diminished the quality of his service below that meriting a fully honorable or general discharge. The Board noted that an Administrative Separation Board was properly conducted and that the separation authority determined the specific offenses warranted separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or the result of racial bias. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

 (7), (14), and (15) The issues are rejected. The evidence of record does not support the applicant’s contentions and the applicant has provided no independent corroborating evidence in support of them. 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.
(2), (3), (4), (5), (6), (8), (9), (11), (12), and (13) The issues are rejected. The matters addressed in these issues are not within the purview of the Army Discharge Review Board and are not matters on which the Board grants a change in discharge because they raise no matter of fact, law, procedure, or discretion relating to the discharge process. The applicant may apply to the Army Board for Correction of Military Records to address these concerns.

 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       

                                 
Ms. McKim-Spilker
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
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: 2000044600 INDEX NUMBERS: A0139
Date of Review: 000830 A9217
Character of Service: UD A9235
Date of Discharge: 941218 A9315
Authority: AR 635-200 C14 A9445
Reason: A6100 A0100
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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