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): 021220
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: 3 Years ASR
b. Entry date: 000105
c. Age: 19 Years DOB: 810104
d. Educational level: HS Grad
e. Aptitude area score:
GT: 86 3. Highest grade
achieved:
f. Length of Service: E3
2 Years 11 Months 16 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:
Date Offense(s)
020807 Failure to be at appointed place of duty (NIF)(Company
Grade)
020517 Disrespectful toward a 1LT by contemptuously turning from
and leaving her while she was talking to him (020228);
Disrespectful in language toward a SGT, two specifications
(020228); Unlawfully strike a SGT by pushing him with his
forearm and elbow (020228)(Company Grade)
010910 Wrongfully used marijuana (between 010606 and
010706)(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
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 5 August 2002, 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 a serious offense, with a general, under honorable
conditions discharge. The reasons for the proposed action were the three
Article 15s he received for violations including wrongful use of marijuana
and disrespect toward a commissioned officer and noncommissioned officers.
He was advised of his rights. On 5 August 2002, 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. On 20 and 21 August 2001 respectively, the
Battalion and Group commander reviewed the proposed discharge action and
recommended approval of the separation action with an under other than
honorable conditions discharge. On 26 August 2002, the applicant was
notified of the intermediate commanders’ recommendations. He was also
notified of the additional incidents of misconduct added to his packet, to
include a second wrongful use of marijuana and wrongful distribution and
possession of marijuana. On 11 September 2002, having been advised by
legal counsel, he voluntarily waived consideration of his case by an
administrative separation board contingent on receiving a characterization
of service no less favorable than general, under honorable conditions. On
24 October 2002, the separation authority disapproved the applicant’s
request for conditional waiver and approved his request for a personal
appearance before an administrative board. On 6 December 2002, the
applicant, again under legal counsel, unconditionally waived consideration
of his case by an administrative separation board. On 11 December 2002,
the proper legal authority reviewed the separation action and recommended
approval of the applicant’s unconditional waiver with an issuance of an
under other than honorable conditions discharge. The final action by the
separation authority is not contained in the available records. However,
on 13 December 2002, the applicant acknowledged receipt of his installation
bar letter and a copy of the approval letter for his Chapter 14 discharge
action, both dated 11 December 2002. The record also 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 involuntarily discharged under the provisions of
Chapter 14, paragraph 14-12c(2), AR 635-200 by reason of misconduct, with a
characterization of service of under other than honorable conditions, with
a separation code of JKK, and an RE code of 3.
b. On 20 December 2002, the applicant was discharged. At the time
of discharge, the applicant had completed 2 years, 11 months, and 16 days
of active military service in the period under review
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 031122, with two (2) 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 August
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 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. The Board does not condone the applicant’s
misconduct; however, determined that the characterization of service is
inequitable. The Board found that the nature of the applicant's misconduct
did not rise to a level warranting the issuance of a characterization of
service of under other than honorable conditions. Additionally, the
applicant’s misconduct was/is mitigated by: the length of his service and
evidence of favorable 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 found that
the reason for discharge was both proper and equitable, and voted not to
change it.
(1) The issue is rejected. The Board determined that the
applicant’s misconduct diminished the quality of his service below that
meriting a fully honorable discharge.
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
1901 South Bell Street, 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: 20 August 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 does not entail a restoration of grade.
SECTION B - CERTIFICATION
Approval Authority:
ROBERT L. HOUSE
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: 2003099721 INDEX NUMBERS: A9406
Date of Review: 040818 A9236
Character of Service: UD A9222
Date of Discharge: 021220 A0113
Authority: AR 635-200 C14
Reason: A6770
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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