PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1.  Character of Discharge:  GD

2.  Date of discharge (or REFRAD):  980404

3.  Authority for separation:

	a.  Regulation:  Chapter 7, AR 135-178

	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:
			                          SWASM/2BSS                 
a.  Period entered for:  6 Years               KLM
b.  Entry date:  920712                        
c.  Age:  36 Years   DOB:  560426                                          
d.  Educational level:  GED                                                     
e.  Aptitude area score:
	    GT:  117                               3.  Highest grade achieved:
    f.  Length of Service:                         E5
          5 Year(s)  8 Month(s)  23 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)
	941002	Acquiring & possessing an automatic weapon (AK-47) and smuggling it back to the US.

7.  Court-Martial data:  NONE

	a.  SCM:  
		Date   Offense(s)

	b.  SPCM:  
		Date   Offense(s)

	c.  GCM:	 
		Date   Offense(s)

8.	Remarks:  Bar to Reenlistment (970628)

SECTION B - Prior Service Data

Other discharge(s):

	Service	From	To	Type Discharge
	USAR          771113    780316        NA
	USAR          780317    780409        HD
	RA           780410     810331        HD
	USAR         810401     901226        NA
	USAR         901227     910503        HD
	USAR         910504     920711        NA

PART IV - PREHEARING REVIEW

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

	a.  Note:  The evidence of record shows that on 27 August 1997, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 7, AR 135-178, misconduct-commission of a serious offense, with an under other than honorable conditions discharge.  He was advised of his rights.  On 4 April 1998, Orders 94-1, DA, HQ, US Army, Special Operations Command, Fort Bragg, NC, discharged applicant from the USAR, with a general, under honorable conditions discharge. 

	b.  On 4 April 1998, the applicant was discharged with a general, under honorable conditions discharge, under the provisions of Chapter 7, AR 135-178, by reason of misconduct-commission of a serious offense.  He was credited with 
5 years, 8 months, and 23 days active service on the enlistment under review and 
20 years, 7 months and 10 days total time in service.  

2.  Legal/Regulatory Basis for Separation Action:  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation.  The regulation provided that the separation authority could disapprove the commander’s recommendation for discharge for misconduct and direct disposition by other means, disapprove the recommendation for separation for misconduct and direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should be separated for misconduct.  When discharged under this provision, Army policy states that the characterization of service will normally be under other than honorable conditions.  The regulation also permitted the characterization of service as under honorable conditions, but did not authorize the characterization of service as honorable.

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 981216.
	A-2:  Counsel Issues:  NONE
	B-l:  Other Documents: NONE
	C-1:  DD Form 149, dated 981216.

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 7 April 1999

	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:
	    (   )	Additional issue(s) identified during review/hearing as follows:

	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.

        (1), (2), (3) and (4)  The issues are rejected.  The Board carefully examined the applicant's record of service during the period of enlistment under review.  The evidence of record revealed that the applicant was discharged under the provisions of Chapter 7, Army Regulation 135-178 for misconduct as a result of acquiring, possessing, and smuggling an automatic weapon (AK-47) in violation of military orders as well as state and federal laws.  The Board found no evidence of arbitrary or capricious actions by the command.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Additionally, the Army Discharge Review Board is not empowered to reinstate former service members to active duty or authorized back pay.  Finally, the Board concluded that the discrediting entry in the applicant's record was not outweighed by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed.  Accordingly, the Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

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                      .

	( X )	Equitable.
	(   )	Inequitable as to characterization.  Change characterization to                               .
	(   )	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       1         4   

	  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	

MRS. WADE                                                        
Case Reviewing Official	

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

NONE

SECTION B - CERTIFICATION

Approval Authority:

THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:

SUZANNE WALKER    
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:  1999024442                    INDEX NUMBERS:  A9217
Date of Review:  990407                                   A0100
Character of Service:  GD                                 A9411
Date of Discharge:  980404                                A9405
Authority:  AR 135-178 C7                                 A9445
Reason:  A6730                                            
Results of Board Action/                                  
Vote/Affirmation:  NC 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. 	Mbr          X                 X