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ARMY | DRB | CY2000 | 2000047284
Original file (2000047284.rtf) Auto-classification: Denied
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): 000330

3. Authority for separation:

         a. Regulation: Chapter 7, AR 135-178

          b. Reason: Misconduct-Civil Conviction
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: 6 Years ASR
b. Entry date: 970713 NCOPDR
c. Age: 40 Years DOB: 570204
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 92 3. Highest grade achieved:
f. Length of Service: E7
2 Year(s) 8 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: NONE

 Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         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
         USAR     790430   790521   NA
         RA       790522   811210   Honorable
         RA       811211   841207   Honorable
         USARCG   841208   870831   NA
         USARR    870901   910827   NA
         RA       910828   970712   Honorable
        




PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that the applicant was convicted in Caddo Parish Civil Court, Shreveport, LA of driving while intoxicated and was sentenced to one year hard labor and three years probation. On 4 October 1999, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, AR 135-178, by reason of misconduct—civil conviction, with a general, under honorable conditions discharge. He was advised of his rights. The applicant’s certified letter of notification and to confer with legal counsel, and the other documents that will be considered by the separation authority supporting the proposed separation was returned unclaimed by the US Postal service after three attempts to deliver them to the applicant’s last known address. The unit commander subsequently recommended separation from the service. The Major, Judge Advocate, Chief of Military Law reviewed the proposed discharge action and recommended approval of the separation action. On 28 March 2000, the separation authority, Department of the Army, US Army Reserve Personnel Command; St. Louis, Missouri directed that the applicant be discharged with a general, under honorable conditions discharge.

         b. On 30 March 2000, the applicant was discharged. At the time of discharge, the applicant had 2 years, 8 months, and 18 days, service on his current period of enlistment under review and 14 years, 2 months, and 12 days, total time in service.

         c. The unit commander recommended the applicant be separated from the Army because he pled guilty in civil court to driving while intoxicated, his third offense, and he was sentenced to 1 year hard labor and 3 years supervised probation.

2. Legal/Regulatory Basis for Separation Action: Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation. The regulation provided that the separation authority could disapprove the commander’s recommendation for discharge for misconduct and direct disposition by other means, disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should be separated for misconduct. When discharged under this provision, Army policy states that the characterization of service will normally be under other than honorable conditions. The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.
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 000904, with two (2) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE
         C-1: DD Form 149, dated 000904.

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 8 November 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 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:

 (1) The issue is 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 infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board noted the applicant pled guilty in civil court to driving while intoxicated and was sentenced to one (1) year hard labor and three (3) years supervised probation. The applicant’s conviction by civil authorities obligated military authorities to consider him 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 service below that meriting a fully honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct. 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:


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: 2000047284 INDEX NUMBERS: A9217
Date of Review: 001108 A0100
Character of Service: GD A9201
Date of Discharge: 000330 A9203
Authority: AR 135-178 C7 A9445
Reason: A6700
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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