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ARMY | DRB | CY2003 | 2003086838
Original file (2003086838.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): 010205

3. Authority for separation:

         a. Regulation: AR 135-178(NA)

          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: 6 Years NCOPDR (1)
b. Entry date: 981104 ASR
c. Age: 34 Years DOB: 640131 OSR
d. Educational level: HS Grad
e. Aptitude area score:
          GT: NIF 3. Highest grade achieved:
f. Length of Service: E3
2 Year(s) 3 Month(s) 2 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: 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       810928   850424   Honorable
         RA       850425   880315   Honorable



PART IV - PREHEARING REVIEW

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

         On 5 February 2001, Department of the Army, 77 th Regional Support Command, Bldg. 200, Fort Totten; Flushing, NY, Orders 01-036-001 discharged the applicant from the United States Army Reserve, effective date 5 February 2001, with a characterization of service of general, under honorable conditions and separation code of “NA” (i.e., misconduct). The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.

         b. On 5 February 2001, the applicant was discharged. At the time of discharge, the applicant had completed 2 years, 3 months, and 2 days of active military service in the period under review and had a total of 8 years, 8 months and 19 days of active military service.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation. The regulation provided that the separation authority could disapprove the commander’s recommendation for discharge for misconduct and direct disposition by other means, disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should be separated for misconduct. When discharged under this provision, Army policy states that the characterization of service will normally be under other than honorable conditions. The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.
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 030313.
         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 10 September 2003 .

         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 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 applicant’s record is void of the specific facts and circumstances concerning the events that led to a discharge from the United States Army Reserve. However, the Board noted that the applicant’s record contains several documents notifying him of his unexcused absences and indicating the actions required by the applicant to adjudicate his absences from drill. The latter documents, for which the applicant acknowledged receipt with his signature, also informed the applicant that failure to contact his unit within the appropriate time would result in his being processed for discharge as an unsatisfactory participant. Additionally, the applicant’s record contains a properly constituted order from the Department of the Army 77 th Regional Support Command, USAR, Flushing, N.Y., discharging the applicant under the provisions of AR 135-178 from the USAR by reason of misconduct with a characterization of service of general, under honorable conditions. In view of the foregoing, the Board presumed Government regularity in the discharge process. In the absence of evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The Board noted the applicant’s contentions; however, did not find his contentions either supported by the available records or corroborated by independent evidence provided by the applicant. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

          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:

          ( 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 2 3
Characterization 2 3

         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
NONE
SECTION B - CERTIFICATION

Approval Authority:


SPURGEON A. MOORE
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




JOHN F. LONG
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: 2003086838 INDEX NUMBERS: A0143
Date of Review: 030910 A0113
Character of Service: GD A9217
Date of Discharge: 010205
Authority: AR 135-178 C13
Reason: A8400
Results of Board Action/
Vote/Affirmation: NC 3-2 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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