Application Receipt Date: 070208

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change

Issues: See DD Form 293 and attached documents.

II.  Were Proper Discharge and Separation Authority procedures followed?
Yes    No        Tender Offer:        

See Attachments:  Legal     Medical     Minority Opinion     Exhibits

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 050713
Discharge Received:     Date: 051020
Chapter: 14    AR: 635-200
Reason: Misconduct, Commission Of A Serious Offense
RE:     SPD: JKQ
Unit/Location: B Company, 84th Engineer Combat Battalion (Heavy), Schofield
Barracks, HI 96857

Time Lost: Confinement Military Authority-13 days, from (050531-050614), as
a result of summary court-martial conviction.

Article 15s (Charges/Dates/Punishment): None

Court-Martials (Charges/Dates/Punishment): 050531/Summary Court-Martial-Did
treat with contempt a 1SG, (050404), and disrupted morning accountability
formation, whose conduct was to the prejudice of good order and discipline
in the armed forces, (050404).  The applicant was sentenced to confinement
for 14 days; reduction to PVT/E1; and forfeiture of $823.00 pay.

Counseling Records Available: Yes    No

IV.  Soldier’s Overall Record
DOB:  821003
Current ENL Date: 030409    Current ENL Term: 4 Years       
Current ENL Service: 02  Yrs, 05 Mos, 28 Days      
Total Service:  02  Yrs, 05 Mos, 28 Days      
Previous Discharges: None
Highest Grade: E4
Performance Ratings Available: Yes    No
MOS: 21K1O Plumber   GT: 100   EDU: HS Grad   Overseas: Hawaii/SouthWest
Asia   Combat: Iraq (040116-050131)
Decorations/Awards: NDSM, GWOTSM, ASR, OSR, C/Ach (2), COT (3)
V.  Post-Discharge Activity
Home of Record: Beaverton, OR 97008
Current Address: 9050 SW Washington Square Road
Apt. 104
Tigard OR 97223
Post Service Accomplishments: The applicant is attending Portland Community
College and pursuing a Bachelor Degree in multi-media and computer science.

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      Evidence of record shows that on 13 July 2005, the unit commander
notified the applicant of initiation of separation action under the
provisions of Chapter 14, AR 635-200, by reason of misconduct—commission of
a serious offense (treated a 1SG with contempt, (4 April 2005), disrupted
morning accountability formation, (4 April 2005), failed to report to
Wheeler Army Airfield at 0900, (24 May 2005), and failed to report to PT
formation at 0600, (25 May 2005), with an under other than honorable
conditions discharge.  He was advised of his rights.  The applicant waived
his right to consult 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.  The intermediate commander
reviewed the proposed discharge action and recommended approval of the
separation action with an under other than honorable conditions discharge.
The senior commander reviewed the proposed discharge action and recommended
approval of the separation action with a general, under honorable
conditions discharge.   On 28 September 2005, 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.









      b.  Legal Basis for Separation:
      Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
and 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.

      c.  Response to Issues, Recommendation and Rationale:
      After a careful review of all the applicant’s military records during
the period of enlistment under review, the issues and documents he
submitted, the analyst recommends that the applicant’s characterization of
service be upgraded to general, under honorable conditions.  This
recommendation was made after full consideration of his faithful and
honorable service, as well as his record of misconduct.  The evidence in
this case supports a conclusion that the applicant’s characterization of
service was too harsh, and as a result it is now inequitable.  While the
applicant's misconduct is not condoned, the analyst found that the length
of the applicant's service, to include his combat service, nature of the
offenses, and his post service accomplishments mitigated the discrediting
entries in his service record.  However, the analyst determined that the
reason for discharge was both proper and equitable.

































VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing:                  Date: 10 September 2007
Location: Washington, DC

Did the Applicant Testify?  Yes     No

Counsel: Mr. Scott H. Sacharow, Esq
                 70 Valley Forge Drive
                 East Brunswick, NJ 08816

Witnesses/Observers: No

Exhibits Submitted: The applicant submitted six additional documents in
support of his personal appearance hearing.



VIII.  Board Decision
The discharge was:                Proper           Improper
                                             Equitable        Inequitable

The characterization of service was:   Proper            Improper
                                             Equitable        Inequitable

The narrative reasons were:             Equitable        Inequitable

DRB voting record:                 Change 5    No change 0   - Character
                                   Change 0    No change 5   - Reason
                                   (Board member names available upon
request)

IX.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the
period of enlistment under review, hearing his testimony, and considering
the analyst’s recommendation and rationale, the Board does not condone the
applicant’s misconduct; however, determined that the characterization of
service was too harsh, and as a result it is inequitable.  The Board found
that the applicant’s combat service and the circumstances surrounding his
discharge, mitigated the discrediting entries in his service record.
Accordingly, the Board voted to grant partial relief in the form of an
upgrade of the characterization of service to general, under honorable
conditions.  However, the Board determined that the reason for discharge
was both proper and equitable and voted not to change it.
















Case report reviewed and verified by: Mr. Kenneth McFarley, Examiner

X.  Board Action Directed
No Change
Issue a new DD Form 214
Change Characterization to:
Change Reason to: None
Other: NA
RE Code:
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority:

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official:


CHRISTINE U. MARTINSON            DATE: 20 September 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder