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ARMY | DRB | CY2001 | 2001052375
Original file (2001052375.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): 901205

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

          b. Reason: Misconduct-Commission of a Serious Offense
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            AAM (4thAwd)
a. Period entered for: 6 Years GCMDL(2ndAwd)
b. Entry date: 851108 NCOPDR(1)
c. Age: 27 Years DOB: 580111 ASR(1)
d. Educational level: HS Grad OSR(2)
e. Aptitude area score:
          GT: 96 3. Highest grade achieved:
f. Length of Service: E5
5 Year(s) 0 Month(s) 13 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 900816-900830;

         Civil conf 0

         Other 0


6. Nonjudicial punishment:

         Date     Offense(s)
         900606   Violated a lawful general regulation by wrongfully accepting $223.00 from a prisoner on or about (900419 and 20).

7. Court-Martial data:

         a. SCM:
                  Date Offense(s)
900816 Willfully and wrongfully dispose of military equipment in an amount over $100.00 on or about (900103 thru 900518).
        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: The applicant has a CID Report of Investigation, dated (900710); a Military Police Report, dated (900509) and an approved Bar to Reenlistment in file dated (9010040.


SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         RA       790820   820801   Honorable
         RA       820802   851107   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 3 October 1990, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—commission of a serious offense, with a general, under 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 did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the service, and waiver of further rehabilitative efforts. On 19 October 1990, the separation authority directed that the applicant be discharged with a general discharge.

         b. On 5 December 1990, the applicant was discharged. At the time of discharge, the applicant had completed 5 years, and 13 days of active military service and accrued 15 days of lost time in the period under review and had a total of 11 years, and 3 months of active military service.

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 001212.
         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 21 March 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:
         ( )     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), (2), (3) and (4) 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 Board noted the applicant’s contentions that he was framed; that he was promised an honorable discharge; and, that he could return to the Army in one year. The evidence of record shows that the applicant received nonjudicial punishment for violating a lawful general regulation by wrongfully accepting money from a prisoner under his control. In addition, he was apprehended in a criminal sting investigation of selling military equipment to an undercover agent, and, subsequently, convicted by summary court-martial. His record also shows that he was counseled on numerous occasions for indebtedness, failing to go, and spousal abuse. The above misconduct resulted in the unit commander’s recommending the applicant for early separation from the Army. The applicant, after consultation with legal counsel, 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 discharge. In view of this voluntary waiver, the applicant clearly understood that he was not being promised an honorable discharge. Further, the applicant’s DD Form 214 was authenticated by his own hand which shows that he was being discharged for the commission of a serious offense with a general discharge. The Board congratulates the applicant on his successful transition to civilian life and his current employment as a correction officer, however, the quality of his active duty service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The Board concluded that the discrediting entries in the applicant's record were not outweighed by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed. Finally, the Board found no evidence in the record to support the applicant’s contention that he was framed. 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       

                                 
Ms. McKim-Spilker
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
SECTION B - CERTIFICATION

Approval Authority:


GERARD W. SCHWARTZ
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: 2001052375 INDEX NUMBERS: A9217
Date of Review: 010321 A9235
Character of Service: GD A0100
Date of Discharge: 901205
Authority: AR 635-200 C14
Reason: A6730
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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