Application Receipt Date: 2006/09/27 Prior Review Prior Review Date: None I. Applicant Request Request: Upgrade Reason Change RE Code Change Issues: See attached DD Form 293. 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: 2001/05/16 Discharge Received: Date: 2001/07/11 Chapter: 14 Para 14-12b AR: 635-200 Reason: Misconduct RE: SPD: JKA Unit/Location: A Company 40th Engineer Battalion APO, AE 09340 Time Lost: None Article 15s (Charges/Dates/Punishment): 00/12/29, disobeyed a lawful order from a noncommission officer to check the vehicle for leaks. Reduction to E-2 (suspended), forfeiture of $266.00, extra duty and restriction for 7 days. 010405 suspension of the reduction to PV2 was vacated for being disrespectful in language to an NCO (01/03/26); 01/04/09, disrespecful in language to an NCO, disobeyed a lawful order from an NCO to be at ease and to go to the position of parade rest. Reduction to E-1, forfeiture of $245.00, extra duty and restriction for 14 days. Court-Martials (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record DOB: 81/07/20 Current ENL Date: 99/09/30 Current ENL Term: 4 Years Current ENL Service: 01 Yrs, 09Mos, 12Days Total Service: 01 Yrs, 09Mos, 12Days Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 62J Gen Const Equip Op GT: 91 EDU: HS Grad Overseas: Kosovo 20001126 - 20010530 Combat: None Decorations/Awards: ASR, Nato Medal, KCM, V. Post-Discharge Activity Employed for over four years at a Department of Defense Child Care Development Center. In addition earned over 60 credit hours toward a college degree. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 16 May 2001, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of pattern of misconduct. The reasons for this action were on 26 December 2000 the applicant disobeyed a lawful order from a noncommissioned officer, and on 26 March 2001 the applicant wrongfully disrespected and disobeyed a noncommissioned officer. The applicant was counseled on his deficiencies but failed to improve his conduct. He was advised of his rights. 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. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 19 June 2001, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under 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, and the issue he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. Further, eligibility for veteran's benefits (to include educational benefits under the Montgomery GI Bill) does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 071130 Location: Washington DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA 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 0 No change 5 - 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 and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. Case report reviewed and verified by: Earl Silver, Examiner X. Board Action Directed No Change Issue a new DD Form 214 Change Characterization to: Change Reason to: NA 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: 071202 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder