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ARMY | DRB | CY2003 | 2003092255

Original file (2003092255.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): 000913

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:
                           ASR
a. Period entered for: 4 Years
b. Entry date: 980129
c. Age: 19 Years DOB: 780623
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 109 3. Highest grade achieved:
f. Length of Service: E2
2 Years 7 Months 15 Days

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:

         a. SCM:
                  Date               Offense(s)

         b. SPCM:
                  Date               Offense(s)

         c. GCM:
                  Date               Offense(s)

8.       Remarks:         NONE

SECTION B - Prior Service Data
NONE

Other discharge(s):

         Service From      To        Type Discharge

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 15 August 2000, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct-a pattern of misconduct, with a characterization of service of under other than honorable conditions. The applicant’s misconduct included missing movement by consuming an excessive amount of alcohol (000508), failure to be at the time prescribed to his appointed place of duty on numerous occasions (between 990713 and 000123), uttering three worthless checks to American Airlines (between 000304 and 000704), willfully making false official statements with the intent to deceive on numerous occasions (between 990802 and 991210), and willfully falsifying official documents (000310). He was advised of his rights. On 15 August 2000, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by an administrative separation board, and did not submit a statement in his own behalf. On 15 August 2000, the unit commander recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. The proper legal authorities reviewed the discharge action and found it to be legally sufficient. On 5 September 2000, the separation authority approved the separation action and directed that the applicant be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted grade.

         b. On 13 September 2000, the applicant was discharged. At the time of discharge, the applicant had completed 2 years, 7 months, and 15 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 030618, with seven (7) 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:
         ( X ) Records review ( ) Hearing

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

         c. Review/hearing location and date: Washington, DC on 10 March 2004 .

         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 Issue: (5) 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 parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

(1-4) The issues are rejected. The Board noted the applicant’s contentions; however, determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review. The Board found no evidence of arbitrary or capricious action on the part of the applicant’s chain of command. The Board determined that the reason for the applicant’s discharge was both proper and equitable and voted not to change it. See response to issue (5) below.

         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.

(5) 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. The Board does not condone the applicant’s misconduct; however, determined that the characterization of service is too harsh. The Board found that the applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient merit to warrant an upgrade of the discharge being reviewed. Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to general, under honorable conditions. Further, the Board noted that block 27 (Reentry Code) of the applicant’s DD Form 214 requires an administrative correction to reflect an RE code of “3.”

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 4 1

         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: 12 March 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-2 and an administrative correction to the applicant’s DD Form 214 to reflect a reentry eligibility (RE) code of “3.”

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: 2003092255 INDEX NUMBERS: A9406
Date of Review: 040210 A9236
Character of Service: UD A9411
Date of Discharge: 000913 A0101
Authority: AR 635-200 C14 A0113
Reason: A6750
Results of Board Action/
Vote/Affirmation: GD 4-1 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 | 2003092255

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