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ARMY | DRB | CY2003 | 2003098704
Original file (2003098704.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): 991110

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:
                            ARCOM ASR
 a. Period entered for: 3 Years AAM (2) OSR
b. Entry date: 980311 GCMDL (2) KLM
c. Age: 39 Years DOB: 601031 NDSM KLM (SA)
d. Educational level: HS Grad SWA w/3 BSS
e. Aptitude area score:
          GT: 110 3. Highest grade achieved:
f. Length of Service: E5
1 Years 7 Months 29 Days

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

         Other


6. Nonjudicial punishment:

         Date     Offense(s)
         990818   Wrongfully use cocaine between (990503 and 990603)(Field Grade)
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
         RA       880809   920312   Honorable
         RA       920313   950312   Honorable
         RA       950313   980310   Honorable



PART IV - PREHEARING REVIEW

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

         a. Evidence of record shows that on 14 October 1999, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter l4, AR 635-200, by reason of misconduct — use of illegal drugs, 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 applicant was entitled to an administrative separation board however; he submitted a request for conditional waiver of a board contingent upon receiving a characterization of service of no less than general. The unit commander subsequently recommended separation from the service with a general discharge and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action, however, with a characterization of service of under other than honorable conditions. On 17 October 1999, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than honorable conditions and reduced to the lowest enlisted grade. On 25 October 1999, the applicant consulted with legal counsel and submitted his unconditional waiver of an administrative separation board.

         b. On 10 November 1999, the applicant was discharged. At the time of discharge, the applicant had completed 1 year, 7 months, and 29 days of active military service in the period under review and had a total of 11 years, 3 months and 1 day of active military service.

         c. There appears to be a discrepancy in the computation of the applicant’s total military service on his final DD Form 214. It credits him with 14 years, 10 months, and 7 days of total military service. However, due to the computation of overlapping periods of service (910807-950312) between the two DD Form 214’s of record he was credited in excess of 3 years, 7 months, and 6 days of total 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 031105, 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:
         ( ) Records review ( X ) Hearing

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

         c. Review/hearing location and date: Dallas, TX on 25 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: 3 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 parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

 (1) See Paragraph 3, 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 and heard his testimony. 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 preponderance of the applicant’s service was honorable and mitigated the discrediting entry in the service record. 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 proper and equitable and voted not to change it.

 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 .
         ( )      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

 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
Honorable.
( 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: 2003098704 INDEX NUMBERS: A9406
Date of Review: 040325 A9218
Character of Service: UD A0113
Date of Discharge: 991110
Authority: AR 635-200 C14
Reason: A6770
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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