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):  990108

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                      
a.  Period entered for:  NIF                   GCMDL(3)
b.  Entry date:  950823                        C/Ach(4)
c.  Age:  26 Years   DOB:  690212              L/C                         
d.  Educational level:  NIF                                                     
e.  Aptitude area score:
	    GT:  NIF                               3.  Highest grade achieved:
    f.  Length of Service:                         E6
          3 Year(s)  4 Month(s)  16 Day(s)                                  
                                                           
                                               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)
	980811    Wrongfully having an unauthorized relationship with a Delayed Entry Program member, between (971100 and 980516) 

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            880624    920322        HD
	RA            920323    950822        HD

PART IV - PREHEARING REVIEW

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

	a.  Evidence of record shows that the applicant underwent an investigation under the provisions of AR 15-6 and USAREC Pam 27-65, for an alleged unauthorized relationship with and sexual harassment of a Delayed Entry Program (DEP) member.  On 30 June 1998 the Report of Investigation reported that the allegation of an unauthorized relationship between the applicant and a DEP member was substantiated.  However, the allegation of sexual harassment was unsubstantiated.  The investigating officer recommended that the applicant be relieved from recruiting and chaptered from the Army for violating USAREC Regulation 600-25, Prohibited and Regulated Activities, paragraph 2-1.  The applicant’s Battalion Commander concurred with the investigating officer’s recommendation.  The Battalion Commander also indicated that the applicant’s separation from service had been initiated under the provisions of Chapter 5, AR 600-23, for Parenthood and recommended that the applicant’s separation for Parenthood be approved upon submission.  On 15 September 1998, the unit commander recommended separation of the applicant under the provisions of Chapter 14, Paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense.  The record 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 discharged under the provisions of Chapter 14, Paragraph 14-12C, AR 635-200 by reason of misconduct with a characterization of service of under other than honorable conditions.

	b.  On 8 January 1999, the applicant was discharged.  At the time of discharge, the applicant had 3 years, 4 months, and 16 days service on his current enlistment and 10 years, 6 months and 15 days total time in 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 991210, with three (3) enclosure(s).
	A-2:  Counsel Issues:  NONE
	B-l:  Other Documents: NONE
	C-1:  DD Form 149, dated 991210.

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 16 February 2000.

	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:  (8)  Characterization of service was too harsh.

	b.  Request:  ( X ) Recharacterization     ( X ) 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.

        (8)  The issue is accepted.  There was a full consideration of all service including the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The Board determined that the characterization of service was 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 characterization of service to general, under honorable conditions.  The Board determined that the reason for discharge was proper and equitable and voted not to change it.

        (1)  The issue is rejected.  The Board concluded that the applicant’s misconduct constituted a departure from the standards of conduct expected of noncommissioned officers in the Army.  Having examined all the circumstances, the Board determined that the applicant's misconduct did indeed adversely affect the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  This misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge.  See response to issue (8) above.

        (2), (4), (5), and (7)  The issues are rejected.  The Board found no evidence of arbitrary or capricious actions by the command.  Absent evidence to the contrary, the Board presumed administrative regularity in the separation process and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

        (3)  The issue is rejected.  See response to issue (8) above.

        (6)  The issue is rejected.  The separation code (i.e., JKQ), issued the applicant at the time of discharge correctly reflects that the applicant was discharged under the provisions of Chapter 14, Paragraph 14-12c, by reason of misconduct.  Further, matters pertaining to reinstatement and changes to reentry eligibility (RE) codes do not fall within the purview of this Board.  To obtain a change in an RE code, the applicant should provide supporting documentation to justify any change and submit the request to the Commander, US Army PERSCOM, ATTN:  TAPC-EPR-P, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0450.  To obtain a waiver for reenlistment, the applicant should contact a local Army recruiter for assistance.

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

TO: ARBA Support Division-St Louis      Date:  18 February 2000      

     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:  Restore grade to Sergeant/E-5.

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:  2000036034                    INDEX NUMBERS:  A9218
Date of Review:  000216                                   A9202
Character of Service:  UD                                 A9307
Date of Discharge:  990108                                A9323
Authority:  AR 635-200 C14                                A9411
Reason:  A6730                                            A9235
Results of Board Action/                                  A9445
Vote/Affirmation:  GD 5-0 A                               A9221

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