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ARMY | DRB | CY2003 | 2003087470
Original file (2003087470.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): 990825

3. Authority for separation:

         a. Regulation: Chapter 10, AR 635-200

          b. Reason: In Lieu of Trial by Court-Martial
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            GCMDL (3)
 a. Period entered for: 6 Years NDSM
b. Entry date: 961022 NCOPDR-2
c. Age: 37 Years DOB: 590903 ASR
d. Educational level: 13 Years OSR
e. Aptitude area score:
          GT: 104 3. Highest grade achieved:
f. Length of Service: E5
2 Years 10 Months 4 Days

4. Performance evaluations:
See OMPF Fiche

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)
         970415   Without authority, fail to go at the time prescribed to his appointed place of duty (970407)(Summarized)

7. Court-Martial data: NONE
         a. SCM:
                  Date               Offense(s)
                  980202   Without authority fail to go to his appointed place of duty
(971007); Disrespectful in language and deportment toward a SFC
by yelling and pointing his finger at him (971007); Failure to
obey a lawful order by a 1LT (970730)
         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       880104   930624   Honorable
         RA       930625   961021   Honorable



PART IV - PREHEARING REVIEW

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

         a. All the facts and circumstances pertaining to the applicant’s discharge process are not in the available records. The available evidence of record shows that the applicant was charged with one specification of absent without authority (11-12 August 1999); one specification of false official statement (12 August 1999); two specifications of use of cocaine (1 June 1999)(10-12 August 1999); two specifications of communicating a threat (13 August 1999)(13-15 August 1999). The applicant’s voluntary request for discharge is not contained in the available records. On 20 August 1999, the unit commander recommended approval of the discharge action with a characterization of under other than honorable conditions. The intermediate commanders recommended approval with a characterization of service of under other than honorable conditions. O n 20 August 1999, the separation authority approved the discharge with an under other than honorable conditions discharge. The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty), which was authenticated by the applicant’s signature. His DD Form 214 indicates that he was discharged under the provisions of Chapter 10, AR 635-200 by reason of in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions, a separation code of KFS, and an RE code of 3.

         b. On 25 August 1999, the applicant was discharged. At the time of discharge, the applicant had completed 2 years, 10 months, and 4 days of active military service in the period under review and had a total of 11 years, 7 months and 22 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 l0 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial. The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.


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 030318, with six (6) enclosures.
         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:
         ( ) Records review ( X ) Hearing

         b. Type Held:
         ( )Records review ( X ) Hearing
         ( ) Tender Offer

         c. Review/hearing location and date: Dallas, TX on 23 March 2004 .

         d. Appearance by:
         Applicant ( X ) Yes ( ) No
         Counsel ( X ) Yes ( ) No

          e. Applicant testified: ( X ) Yes ( ) No
        
         f. Counsel presentation: ( X ) Yes ( ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing: 62 documents.

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 characterization of service is too harsh.

         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.

 (2) The issue is accep ted. The Board carefully examined the available records for the period of enlistment under review and heard his testimony. The Board does not condone the applicant’s misconduct; however, determined that the characterization of service is now inequitable. The Board based the foregoing determination on the applicant’s convincing testimony in regards to the credibility of the results from his urinalysis test; the overall length and quality of his service; and his post-service accomplishments. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was both proper and equitable and voted not to change it.


(1) The issue is rejected. Notwithstanding Board’s decision to grant partial relief, the applicant, b y his misconduct and poor duty performance diminished the quality of his service below that meriting a fully honorable discharge. See response to issue (2) above.

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                       .

         ( )      Equitable.
         ( X )    Inequitable as to characterization. Change characterization to General, Under Honorable Conditions .
         ( )      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 3 2

         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: 2 April 2004

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 General, Under Honorable Conditions.
( X )   Other (see remarks below).
Remarks: This action entails a restoration of grade to E-4.
SECTION B - CERTIFICATION

Approval Authority:


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

Official:




MARY E. SHAW
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: 2003087470 INDEX NUMBERS: A9236
Date of Review: 040323 A9218
Character of Service: UD A9222
Date of Discharge: 990825 A0113
Authority: AR 635-200 C10
Reason: A7000
Results of Board Action/
Vote/Affirmation: GD 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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