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ARMY | DRB | CY2003 | 2003086904

Original file (2003086904.rtf) Auto-classification: Denied

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): 900427

3. Authority for separation:

         a. Regulation: Chapter 14, Paragraph 14-5, AR 635-200

         b. Reason: Civilian Conviction

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 GCMDL (3rdAwd)
b. Entry date: 840110 NDSM
c. Age: 31 Years DOB: 520406 NCOPDR (2)
d. Educational level: HS Grad ASR
e. Aptitude area score: OSR
         GT: 119 3. Highest grade achieved:
f. Length of Service: E6
2 Year(s) 4 Month(s) 26 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 860606-900427

         Other

6. Nonjudicial punishment:

         Date     Offense(s)
         860401   Derelict in the performance of your duties, in that you failed to check your howitzer lay (860322).

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 a CID Report of Investigation in file dated (860805).

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         RA       721218   741001   Honorable
         RA       741002   790430   Honorable
         RA       790501   830430   Honorable
         USARCG   830501   840429   Honorable

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 2 March 1989, the applicant was convicted in the District Court of Texas; 52 ^nd Judicial District; State of Texas, on one charge: (1) indecency with a child (by contact). He was sentenced to 20 years for the offense of indecency with a child (by contact). On 22 November 1989, 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 requested legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board and submitted a statement in his own behalf. The unit commander subsequently recommended separation from the service, and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 17 January 1990, the Board met; applicant was represented by counsel, the Board recommended separation with an under other than honorable conditions discharge. The separation authority approved the findings and recommendations of the board and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.

         b. On 27 April 1990, the applicant was discharged. At the time of discharge, the applicant had completed 2 years, 4 months, and 26 days of active military service and accrued 1,126 days of lost time in the period under review and had a total of 12 years, 9 months and 16 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 030123.
         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 3 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 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 the infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board noted the applicant’s contentions; however, did not find said contentions mitigated the serious misconduct for which the applicant was tried and convicted by civil authorities. The Board determined that the applicant's discharge under the provisions of Chapter 14, Paragraph 14-5, AR 635-200, by reason of his civilian conviction was appropriate. By his serious misconduct, the applicant diminished the quality of service below that meriting a fully honorable or general discharge. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the serious misconduct that led to his civilian conviction and subsequent discharge from service. 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

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: 2003086904 INDEX NUMBERS: A9235
Date of Review: 030903 A9217
Character of Service: UD A0113
Date of Discharge: 900427
Authority: AR 635-200 C14
Reason: A6100
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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ARMY | DRB | CY2003 | 2003086904

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