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ARMY | DRB | CY2001 | 2001060284
Original file (2001060284.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): 930226

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

          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:
                            ARCOM(1OLC)
a. Period entered for: 6 Years AAM(5thAwd)
b. Entry date: 890418 GCMDL (3rdAwd)
c. Age: 26 Years DOB: 620908 NCOPDR(2)
d. Educational level: HS Grad OSR(2)
e. Aptitude area score:
          GT: 111 3. Highest grade achieved:
f. Length of Service: E7
3 Year(s) 7 Month(s) 7 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 921006-921013; 921022-921027;

         Mil conf 0

         Civil conf 921202-930226;

         Other 0


6. Nonjudicial punishment:

         Date     Offense(s)
         921028   AWOL two specifications (921006-921013); (921022-921027); Failed to go to your appointed place of duty (921021).

7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: The applicant’s discharge was approved under the provisions of
                            Chapter 14, AR 635-200, by reason of misconduct-civil
                           conviction; however, as a result of an administrative error,
                           the transition point issued the applicant a DD Form 214
                           indicating that he was discharge under the provisions of Chapter
                           10, AR 635-200 for the good of the service-in lieu of court-
                           martial.
SECTION B - Prior Service Data


Other discharge(s):

          Service   From      To        Type Discharge
         RA       810421   830405   Honorable
         RA       830406   890417   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 9 September 1992, the applicant was convicted in the District Court of Comanche County, State of Oklahoma, on one count of rape in the first degree. He was sentenced to 20 years. On 14 October 1992, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct-civil conviction, 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, and voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a favorable characterization of discharge, and submitted a statement in his own behalf. The unit commander and intermediate commander recommended disapproval of the request for conditional waiver and recommended separation from the service with an under other than honorable conditions discharge. On 12 November 1992, the separation authority denied applicant’s request for conditional waiver, and referred the applicant’s case to an administrative separation board of officers. The applicant was notified to appear before a board of officers. The board met, applicant was represented by counsel. The board recommended separation with issuance of an under other than honorable conditions discharge and that the recommendation be suspended until 19 February 1993 until the child carried by the applicant’s wife is born and discharged from the hospital. On 18 December 1992, the separation authority approved the findings and recommendation of the board and directed that the applicant be issued an under other than honorable conditions discharge and barred from the military installation.
         b. On 26 February 1993, the applicant was discharged. At the time of discharge, the applicant had completed 3 years, 7 months, and 7 days of active military service and accrued 98 days of lost time in the period under review and had a total of 11 years, 7 months, and 4 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 a discharge under other than honorable conditions 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 010719.
         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 26 September 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) 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 determined that the applicant's discharge was appropriate because his serious misconduct leading to a civil court conviction was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By his misconduct, the applicant diminished the quality of service below that meriting a fully honorable or general 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 in question. Notwithstanding the aforementioned, the Board noted that the applicant’s DD Form 214 requires administrative correction and will direct ARBA Support Division St. Louis to issue the applicant a corrected copy. 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       

                                 
MR. RIVERA
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

 TO: ARBA Support Division-St Louis Date: 28 September 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 )   Other (see remarks below).
Remarks: Issue the applicant a new DD Form 214 reflecting the following
corrections: block 25 to "Chapter 14, Paragraph 14-12c, AR 635-
200"; block 26 to “JKQ”; and block 28 to “Misconduct."
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: 2001060284 INDEX NUMBERS: A9235
Date of Review: 010926 A9201
Character of Service: UD A9217
Date of Discharge: 930226 A9221
Authority: AR 635-200 C14 A0113
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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