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ARMY | DRB | CY2000 | 2000049957

Original file (2000049957.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): 890302

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         b. Reason: Misconduct-Drug Abuse

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: 4 Years GCMDL
b. Entry date: 850628 ASR
c. Age: 17 Years DOB: 680116 OSR
d. Educational level: HS Grad C/Ach
e. Aptitude area score:
         GT: 109 3. Highest grade achieved:
f. Length of Service: E4
3 Year(s) 6 Month(s) 22 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 881017-881031;

         Mil conf 881104-881128;

         Civil conf 0

         Other 0

6. Nonjudicial punishment:

         Date     Offense(s)
         880614   Failed to go to your appointed place of duty on (880601).
         880714   Wrongfully possessed some amount of marijuana on (880508) and wrongfully used cocaine between (880603 and 880607).

7. Court-Martial data:

         a. SCM:
                  Date Offense(s)
881104 AWOL from (881017-881031).

         b. SPCM:
                  Date Offense(s)

         c. GCM:
                  Date Offense(s)

8.       Remarks: The applicant has an approved Bar to Reenlistment in file, dated (880811).

SECTION B - Prior Service Data
NONE

Other discharge(s):

         Service From      To        Type Discharge

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 1 December 1988, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—drug abuse, 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, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general, under honorable conditions discharge and submitted a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 30 January 1989, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board. On 14 February 1989, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with an under other than honorable conditions discharge.

         b. On 2 March 1989, the applicant was discharged. At the time of discharge, the applicant had 3 years, 6 months, and 22 days, service on his current enlistment under review and 43 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 000118, with twenty-one (21) 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 17 January 2001 .

         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

Board Issues: (13) The characterization of service was too harsh.
(14) The narrative reason for discharge is inequitable.

         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.

(13) The issue is accepted. 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 Board found that the length and quality of the applicant’s service mitigated his misconduct. In view of the foregoing, the Board determined that the characterization of service was inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions.

(14) The issue is accepted. Regulations currently in effect list the reason for the applicant’s discharge as misconduct. Accordingly, the Board voted to change the narrative reason on the DD Form 214 to misconduct.

(1), (2), (3), (4), (5), (7), (9), (10), and (11) The issues are rejected. The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By misconduct and poor duty performance, 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 the applicant’s service mitigated the misconduct or poor duty performance.

(6) and (12) 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.

(8) The issue is rejected. The Board noted that the applicant met entrance qualification standards to include age. The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

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.
         ( X )    Inequitable as to reason. Change reason to Misconduct
                  under Chapter 14, AR 635-200.
         ( )      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. McKim-Spilker
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis Date: 19 January 2001

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 )   Change reason and authority for discharge to
        Misconduct, AR 635-200.
( X )   Other (see remarks below).

Remarks: This action does not entail a restoration of grade.

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: 2000049957 INDEX NUMBERS: A9406
Date of Review: 010117 A9218
Character of Service: UD A9442
Date of Discharge: 890302 A0100
Authority: AR 635-200 C14
Reason: A6770
Results of Board Action/
Vote/Affirmation: GD 5-0 A

PART IX - VOTING RECORD

Name Reason Characterization
CHANGE NC HON UHC NC UNCHAR

1. COL MOORE, SPURGEON 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 | 2000049957

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