Upgrade.Vet

ARMY | DRB | CY2001 | 2001053105

Original file (2001053105.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): 951115

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:
                           GCMDL
a. Period entered for: 2 Years
b. Entry date: 931110
c. Age: 21 Years DOB: 720818
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 110 3. Highest grade achieved:
f. Length of Service: E3
2 Year(s) 0 Month(s) 3 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)
         940127   Failed to go to your appointed place of duty (940111).
         950210   With intent to deceive, made an official statement which was false (950120) and failed to obey a lawful general regulation by wearing an earring while in uniform (950127).
         950515   Failed to go to your appointed place of duty, three specifications (950504); (950502) and (950501).
         950626   Wrongfully used marijuana between (950425 and 950524).

         _________________________________

         941206   Memorandum of reprimand-for climbing out onto the 2 ^nd story ledge to get into your room (administrative).
         950705   Memorandum of reprimand-for the presence of marijuana in your urine sample (administrative).

7. Court-Martial data: NONE

         a. SCM:
                  Date Offense(s)


         b. SPCM:
                  Date Offense(s)

         c. GCM:
                  Date Offense(s)

8.       Remarks: The applicant has an approved Bar to Reenlistment, dated (950315) and a Military Police Report in file dated (941002).

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         RA       911001   931109   Honorable

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 14 August 1995, 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 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 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. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 24 October 1995, the applicant was notified to appear before a board of officers. On 3 November 1995, the board of officers met; applicant appeared with counsel. The board recommended separation for misconduct with issuance of an under other than honorable conditions discharge. On 7 November 1995, 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 15 November 1995, the applicant was discharged. At the time of discharge, the applicant had completed 2 years, and 3 days of active military service in the period under review and had a total of 4 years, 1 month, and 15 days 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 010203.
         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 28 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issue: (2) 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.

(2) The issue is accepted. The Board carefully examined the applicant’s record of service for the period of enlistment under review. The evidence of record shows that on 10 November 1993 the applicant reenlisted in the Regular Army for a period of 2 years. Given the period of reenlistment, the Board determined that the applicant’s Expiration of Term of Service (ETS) date to be 9 November 1995. The record indicates that on 15 November 1995 the applicant was administratively discharged under the provisions of Chapter 14, AR 635-200, by reason of misconduct. AR 635-200 provides, in pertinent part, that retention beyond a soldier’s ETS to process administrative proceedings is not authorized. The Board found no evidence of record to justify discharging the applicant beyond his contractual ETS date. Therefore, the Board concluded that the discharge is improper. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable and a change in the narrative reason for separation to Secretarial Authority.

         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) See Paragraph 3, below.

3. Response(s) to item(s) not addressed as decisional issue(s):

Inasmuch as the Board voted to grant the full relief requested, response to the remaining issue is neither required nor rendered.

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 Chapter 5, 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. McKim-Spilker
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis Date: 30 March 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 Honorable .
( X )   Change reason and authority for discharge to
        Secretarial Authority, AR 635-200 .
( X )   Other (see remarks below).

Remarks: Change RE Code to RE-1.

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: 2001053105 INDEX NUMBERS: A0102
Date of Review: 010328 A1200
Character of Service: UD
Date of Discharge: 951115
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 | CY2001 | 2001053105

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