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ARMY | DRB | CY2001 | 2001056302
Original file (2001056302.rtf) Auto-classification: Approved
PART II - APPLICATION DATA

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

1. Character of Discharge: Honorable

2. Date of discharge (or REFRAD): 990106

3. Authority for separation:

         a. Regulation: Chapter 13, AR 635-200

          b. Reason: Unsatisfactory Performance
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: 3 Years (OAD) GCMDL
b. Entry date: 940504 AFRM
c. Age: 34 Years DOB: 590821
d. Educational level: HS GED
e. Aptitude area score:
          GT: 114 3. Highest grade achieved:
f. Length of Service: E6
4 Year(s) 8 Month(s) 3 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
         RA       761015   791014   Honorable
         USARCG   791015   840305   NA
         ARNGUS   840306   901129   NA
         ADT      901130   910519   Honorable
         ARNGUS   910520   940503   NA



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 1 September 1988, the Commander, Recruiting and Retention, Headquarters, Louisiana Army National Guard (LAARNG), notified the applicant of his recommendation to involuntary separate the applicant from the Active/ Guard Reserve (AGR) Program, by reason of substandard duty performance. On 15 September 1998, the applicant submitted a statement in his own behalf. On 16 October 1998, the applicant received notification that the Adjutant General (AG), LAARNG, approved his command’s request for an involuntary separation from the AGR Program, effective 6 January 1999. The record does not contain any further documentation specific to his release from active duty. The record does contain a Form 214 (Certificate of Release or Discharge from Active Duty). His DD Form 214 indicates that he was released from active duty under the provisions of Chapter 13, AR 635-200 by reason of unsatisfactory performance, with a characterization of service of honorable.

         b. On 6 January 1999, the applicant was released from active duty. At the time of release, the applicant had completed 4 years, 8 months, and 3 days of active military service in the period under review.

         c. On 11 July 2000, the AG, LAARNG, indicated in a letter to Representative Jim McCrery (LA), that the LAARNG, counseled the applicant prior to his release, offered him other positions within the LAARNG, and had made numerous attempts to contact him since his release from the AGR Program to offer him another position. The applicant failed to respond to these attempts, and the LAARNG had no choice but to discharge him. In a 14 September 2000 letter to Representative McCrery, the AG, indicated that through an administrative error the applicant was discharged from the National Guard as a traditional soldier. However, unless otherwise found unqualified for reentry, the applicant could be transitioned back to a unit in his geographic area to complete his military service as a traditional guardsman. There is no evidence to indicate whether the applicant has accepted another position within the LAARNG.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 135-178 sets forth the basic authority for the separation of Army National Guard soldiers on full-time National Guard Duty (FTNGD) under Title 32, US Code.


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 010514, with eighteen (18)enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE
          C-1: DD Form 149, dated 010419.

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 10 October 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 regulatory authority for release from active duty
was improper.

         b. Request: ( ) Recharacterization ( X ) 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.

 (2) The issue is accepted. The Board carefully examined the applicant’s record of service during the period of enlistment under review. The Board determined that the authority used to release the applicant from active duty was improper. The applicant should have been released under the provisions of AR 135-178. Accordingly, the Board will correct the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect that he was released from active duty under the provisions of AR 135-178, Chapter 4, Paragraph 4-4, by reason of Secretarial Authority.

(1) The issue is rejected. The Board determined that the contentions raised by the applicant in this issue, beyond that addressed by issue (2) above, do not fall within the purview of the Army Discharge Review Board and should be addressed by the Army Board for Correction of Military Records (ABCMR). The Board noted that the applicant has submitted an application to the ABCMR and his records will be forwarded to that Board for further adjudication.

         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.
         ( )      Improper as to characterization. Change characterization to                                      .
         ( X )    Improper as to reason. Change reason to Secretarial Authority under Chapter 4, AR 135-178 .

         ( 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 5 0
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

 TO: ARBA Support Division-St Louis Date: 12 October 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 reason and authority for discharge to
        Secretarial Authority, Chapter 4, AR 135-178.

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: 2001056302 INDEX NUMBERS: A0108
Date of Review: 011010 A1200
Character of Service: HD A9500
Date of Discharge: 990106
Authority: AR 635-200 C13
Reason: A4900
Results of Board Action/
Vote/Affirmation: MD 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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