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ARMY | DRB | CY2003 | 2003089336

Original file (2003089336.rtf) Auto-classification: Approved

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): 910517

3. Authority for separation:

         a. Regulation: Chapter 14, AR 635-200

         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:
                           NDSM
a. Period entered for: 4 Years ASR
b. Entry date: 891003
c. Age: 19 Years DOB: 700203
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 125 3. Highest grade achieved:
f. Length of Service: E3
1 Year(s) 7 Month(s) 15 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:

         Date     Offense(s)
         910207   Drunk and disorderly on (901222); unlawfully strike SGT by
                           striking him in the face several times with fist on (921222);
         910313   Commit an assault upon individual by striking him in right
                           side of jaw with closed fist and intentionally inflicting
                           grievous bodily harm by fracturing jaw on (910104);

7. Court-Martial data: NONE

         a. SCM:
                  Date Offense(s)


         b. SPCM:
                  Date Offense(s)

         c. GCM:
                  Date Offense(s)

8.       Remarks: The file contains a Military Police Report dated 901222; and,
                  a CID Final Report of Investigation – Aggravated Assault on
                  (910104).

SECTION B - Prior Service Data

Other discharge(s):

         Service From      To        Type Discharge
         USAR     880113 880210    NA
         ADT               880211 880617             UN
         USAR              880618 891003             NA
         (Concurrent Service)

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 2 April 1991, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct—commission of serious offense, with a general, under 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 did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander(s) reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 10 May 1991, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.

         b. On 17 May 1991, the applicant was discharged. At the time of discharge, the applicant had completed 1 year, 7 months, and 15 days of active military service in the period under review and had a total of 3 years, 4 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 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 030415, with three (3) enclosure(s).
         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 29 October 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:
         ( X )   Additional issue(s) identified during review/hearing as follows:

Board Issues: (2) The characterization of service is too harsh.
(3) The narrative reason for discharge is inequitable.

         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 accepted. 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. Although the Board does not condone the applicant’s serious misconduct, the Board determined that the applicant has presented sufficient credible evidence of favorable post-service conduct to overcome the characterization of service granted. Given the time elapsed since the applicant’s discharge, the honorable service he has provided as a member of the North Dakota Army National Guard, his awards and decorations, and his community service during incidents of catastrophe in North Dakota, the Board found that the characterization of service granted is now inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable. The Board determined that the reason for discharge was both proper and equitable and voted not to change it.

(3) The issue is accepted. Regulations currently in effect list the reason for the applicant’s discharge as misconduct. Accordingly, the Board voted to change the narrative reason on the DD Form 214 to misconduct.

(1) See Paragraph 3, below.

3. Response(s) to item(s) not addressed as decisional issue(s):

Inasmuch as the Board voted to grant the full relief requested, response to the remaining issue is neither required nor rendered.

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 Honorable .
         ( X )    Inequitable as to reason. Change reason to Misconduct
                  under Chapter 14, AR 635-200 .
         ( )      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 5 0

         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: 31 October 2003

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 Honorable.
( X )   Change reason and authority for discharge to
        Misconduct, AR 635-200.

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: 2003089336 INDEX NUMBERS: A9222
Date of Review: 031029 A9406
Character of Service: GD A9456
Date of Discharge: 910517 A0100
Authority: AR 635-200 C14
Reason: A6730
Results of Board Action/
Vote/Affirmation: HD 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 | 2003089336

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