Upgrade.Vet

ARMY | DRB | CY2003 | 2003092992

Original file (2003092992.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): 930602

3. Authority for separation:

         a. Regulation: Chapter 8, NGR 600-200

         b. Reason: Misconduct – Abuse of Illegal Drugs

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: 8 Years NDSM
b. Entry date: 890128 SWASM, w/2 BSS
c. Age: 17 Years DOB: 720118
d. Educational level: HS Grad
e. Aptitude area score:
         GT: 114 3. Highest grade achieved:
f. Length of Service: E3
4 Years 4 Months 5 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: 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
         IADT     890607   890810   Uncharacterized
         ADT      900606   900914   Uncharacterized
         AGR      910128   910318   Honorable

         (Concurrent Service)

PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 23 January 1993, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 8, National Guard Regulation 600-200, by reason of misconduct—abuse of illegal drugs. The applicant was informed that the least favorable characterization of service he could receive is under other than honorable conditions. He was advised of his rights. The applicant was given 30 days upon receipt of the proposed discharge memorandum to acknowledge receipt and complete the waiver of rights memorandum. Failure to respond would be considered a waiver of all rights. The applicant did not comply with the directive or contact the unit commander. On 2 April 1993, the unit commander subsequently recommended separation of the applicant from the service. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an other than honorable conditions discharge. The separation authority directed that the applicant be discharged with a characterization of service of under other than honorable conditions, reduction to Private (E1), and RE-3. On 2 June 1993, the State of Texas, Adjutant General’s Department, Austin, Texas, Orders 107-196, discharged the applicant from the Army National Guard and as a Reserve of the Army. The record contains a properly constituted NGB Form 22 (Report of Separation and Record of Service), indicating discharge under the provisions of Chapter 8, NGR 600-200, by reason of misconduct-abuse of illegal drugs, with a characterization of under other than honorable conditions, and a RE code 3.

         b. On 2 June 1993, the applicant was discharged. At the time of discharge, the applicant had completed 4 years, 4 months, and 5 days of total military service.

2. Legal/Regulatory Basis for Separation Action : National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures for the administrative separation of enlisted personnel of the Army National Guard and Army Reserve. Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard and as a Reserve of the Army. The regulation, defines misconduct by reason of one or more of the following: minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, and conviction by civil authorities.

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 030625, with no 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 18 February 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: (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 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 evidence of record does not support the applicant’s contentions and the applicant has provided no independent corroborating evidence in support of his contentions. The evidence of record shows that the applicant was properly processed for separation under the provisions of Chapter 8, NGR 600-200, by reason of misconduct-abuse of illegal drugs. The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a soldier. The applicant, as a soldier, had the duty to support and abide by the Army's drug policies. By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting a fully honorable discharge. See response to issue (2) 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.

(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 infraction of discipline, the extent thereof, and the seriousness of the offense. The Board does not condone the applicant’s misconduct; however, determined that the characterization of service is inequitable. The Board found that the applicant's misconduct 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 the characterization of service to general, under honorable conditions. The Board recommends that the Adjutant General, State of Texas, consider changing the applicant’s characterization of service to general, under honorable conditions and issue the applicant a new NGB Form 22. However, the Board directs that the applicant’s discharge order from the Reserve of the Army be changed to reflect a characterization of service of general, under honorable conditions. The Board determined that the reason for discharge was both proper and equitable and voted not to change it.

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 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


MR. RIVERA
Case Reviewing Official

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

Thru: Chief, National Guard Bureau Date: 20 February 2004.
To: Adjutant General, State of Texas

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 recommends that the applicant be considered for a change of his discharge by the Adjutant General, State of Texas, with issuance of a new NGB Form 22, as follows:

( X )   Change characterization of discharge to General, Under Honorable Conditions.
( X )   Other (see remarks below).

Remarks: This action entails a change to the applicant’s discharge from the Reserve of the Army to reflect a General, Under Honorable Conditions characterization of service and restoration of grade to PFC/E-3. ARBA Support Division-St. Louis, is directed to insure that the applicant’s discharge from the Reserve of the Army reflects the aforementioned changes.

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: 2003092992 INDEX NUMBERS: A9406
Date of Review: 040204 A9218
Character of Service: UD A0101
Date of Discharge: 930602 A0113
Authority: NGR 600-200 C8
Reason: A6770
Results of Board Action/
Vote/Affirmation: GD 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 | 2003092992

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