PART II - APPLICATION DATA

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

1.  Character of Discharge:  General, Under Honorable Conditions

2.  Date of discharge (or REFRAD):  040603

3.  Authority for separation:

      a.  Regulation:  Chapter 14, Paragraph 14-12c, 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**:
                                           PH                 VSM(4th Awd)
    a.  Period entered for:  NIF*                  AM               GWOTEM
    b.  Entry date:  030116                        ARCOM       GWOTSM
    c.  Age:  52 Years   DOB:  500216              AAM(2nd Awd)     HSM
    d.  Educational level:  HS Grad                ARCAM(6th Awd)   AFRM
    e.  Aptitude area score:                       NDSM(3rd Awd)
    NCOPDRw/Num3
          GT:  NIF                               3.  Highest grade
achieved:
    f.  Length of Service:                         E7
          1 Year  4 Month(s)  18 Day(s)

                                               4.  Performance evaluations:

                                                   See OMPF

NOTES:
*  Applicant was released from Title 32 active duty and ordered to Title 10
   active duty (order not available) for Operation Iraqi Freedom.  The
   applicant’s last extension/reenlistment in the NYARNG was on 011216 for
   a period of 5 years.

** Awards and decorations (cont.):  ASR, ARCOTR, RVNCMw/60 Device, CIB

                         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:  Applicant completed over 30 years of total military
service.
              Comprehensive dates of service not available in record.
              Total service calculated using DD Form 214.

                       SECTION B - Prior Service Data
                           See #8 Remarks (above)

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 16 January 2003, the applicant
was released from Title 32 active duty (with the NYARNG Counterdrug
Directorate) and ordered to Title 10 active duty for Operation Iraqi
Freedom.  On 31 October 2003, 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 an under
other than honorable conditions discharge.  The unit commander indicated
that he was initiating separation proceedings based on the applicant’s
abuse of rank and leadership by sexually harassing female junior enlisted
soldiers under his charge; sexually assaulting by digitally penetrating a
junior enlisted soldier under his charge; and, dereliction of duty during a
time of war while on convoy in Iraq.  He was advised of his rights.  On 22
November 2003, board of officers met; applicant appeared with counsel.  The
board found that the applicant did sexually harass female junior enlisted
soldiers and was derelict in his duty by leaving a convoy; it found he did
not sexually assault a junior enlisted soldier.  The Board recommended
separation with a general, under honorable conditions discharge.  The
separation authority approved the board’s findings and directed his
separation with a general, under honorable conditions discharge.  The
applicant’s DD Form 214 indicates that he was discharged from active duty
and transferred to the NYARNG.

      b.  On 3 June 2004, the applicant was discharged.  At the time of
discharge, the applicant had completed 1 year, 4 months, and 18 days of
active military service under Title 10 in the period under review and had a
total of 31 years,
7 months and 4 days of active 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 040616, with multiple enclosure(s).
      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, D.C. on 16 February
2005.

      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     ( 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.

        (1)  The issue is rejected.  The Board found that the reason for
discharge was both proper and equitable, and voted not to change it.  See
response to issue (2), below.

        (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, it determined that the characterization of service is
too harsh.  The applicant's misconduct was mitigated by service of
sufficient length and 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 fully honorable.

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
           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       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:  18 February 2005

     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.

                          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:  20040002862                   INDEX NUMBERS:  A9406
Date of Review:  050216                                   A9218
Character of Service:  GD                                 A9455
Date of Discharge:  040603                                A0101
Authority:  AR 635-200 C14
Reason:  A6730
Results of Board Action/
Vote/Affirmation:  HD 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