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ARMY | DRB | CY2000 | 2000046286

Original file (2000046286.rtf) Auto-classification: Approved

PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: General, Under Honorable Conditions

2. Date of discharge (or REFRAD): 920529

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         b. Reason: Misconduct-Pattern of Misconduct

4. Prior review(s): NONE

PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

1.       Service data: 2. Awards and decorations:
                           ARCOM
a. Period entered for: 5 Years AAM(2)
b. Entry date: 890223 NCOPDR
c. Age: 21 Years DOB: 670819 C/Ach
d. Educational level: GED
e. Aptitude area score:
         GT: 109 3. Highest grade achieved:
f. Length of Service: E4
3 Year(s) 3 Month(s) 7 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)
         920128 Letter of reprimand – DWI (920118)(administrative)

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
         USAR 851211 860127 NA
         RA 860128 890222 HD

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 14 April 1992, 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 a general, under 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, voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or no less favorable than honorable. He did not submit a statement in his own behalf. The unit commander subsequently recommended separation with a general, under honorable conditions discharge. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 12 May 1992, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a general, under honorable conditions discharge.

         b. On 29 May 1992, the applicant was discharged. At the time of discharge, the applicant had 3 years, 3 months, and 7 days service on his current enlistment and 6 years, 4 months, and 2 days total time in service.

         c. The unit commander recommended the applicant be separated from the Army due to his numerous incidents of misconduct. His misconduct consisted of three incidents of driving under the influence of alcohol, two incidents of driving on a suspended license, and a total disregard for rules and regulations. The applicant waived an administrative separation board contingent upon his receiving an honorable discharge; however, there is no evidence the command acted upon it.

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 000811.
         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 20 September 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: (1) The discharge is 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.

(1) 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 submitted a conditional waiver of an administrative separation board contingent upon his receiving an honorable discharge. The Board found no evidence that the command addressed the applicant’s conditional waiver, or that he had or waived a board. The Board found the command’s failure to address the applicant’s conditional waiver or provide him with 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 applicant has not submitted an issue of equity and the ADRB has not otherwise relied upon an issue of equity to change the discharge. The major factors upon which the discharge was based are set forth in Parts III and IV of this decisional document.

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:

         ( )      Proper.
         ( X )    Improper as to characterization. Change characterization to Honorable .
         ( X )    Improper as to reason. Change reason to Secretarial Authority under 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


MS. WADE
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis Date: 22 September 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 Honorable .
( X )   Change reason and authority for discharge to
        Secretarial Authority, AR 635-200 .
( X )   Other (see remarks below).

Remarks: Change the reentry eligibility (RE) code to RE code 1 .

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: 2000046286 INDEX NUMBERS: A0154
Date of Review: 000920 A0142
Character of Service: GD A9500
Date of Discharge: 920529 A1200
Authority: AR 635-200 C14
Reason: A6750
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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ARMY | DRB | CY2000 | 2000046286

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