IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090002568 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests in effect, that his general, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states in part that while serving in Alaska he was falsely accused of rape.  This ended his military career and the future he had in law enforcement.  He states that while at a house party with other Soldiers, he fooled around with a female private first class (PFC) and when they were about to have sex, she changed her mind and left the party.  Shortly after she left the party, he received a phone call from a co-worker who worked at the emergency room.  The co-worker told him that the female PFC was at the emergency room claiming that the applicant and two others from the party had raped her.  This individual further informed the applicant that the PFC had consumed three times over the legal limit for alcohol and was having a rape kit done.  He further indicated that U. S. Army Criminal Investigation Command (USACIDC, also known as CID) investigators were at the hospital to take her statement.  

3.  The applicant also states that although CID investigators believed her story, no evidence was found to support it and investigators forwarded the matter to his unit commander.  His unit commander did not believe he raped the PFC; however, he did believe that his kissing and fondling the PFC were unwanted actions.  He claims he asked the female PFC why she was not telling the truth and she stated she told the CID investigators that she wanted to change her statement because she was drunk when she gave it.  However, they thought she had been coerced into trying to change her statement and told her it was too late. 

4.  The applicant further states that as a result of this incident, he was discharged from the military with a GD and assigned a separation program designator (SPD) code of JQK which indicates he was discharged due to the commission of a serious offense.  He claims during the month prior to his discharge he was kicked out of his unit and had money taken out of his check which resulted in his bills being overdue.  He was also reduced in rank and given 25 days of extra duty.  He indicates that this incident has destroyed his life and that he has written to his Congressman on many occasions in an attempt to have the truth known.  He further states that he attempted to have his discharge upgraded through the Army Discharge Review Board (ADRB); however, his request was denied.  He claims he is still fighting because every time he fills out a job application, he has to attempt to explain why he was discharged from the military which results in him and his wife having to relive the incident over and over again.  He states he wants his name cleared and he wants the truth to be known so that he may pursue his law enforcement career.

5.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's Official Military Personnel File (OMPF) is void of a complete separation packet or a DD Form 214 (Certificate of Release or Discharge from Active Duty) containing all the facts and circumstances surrounding the applicant's discharge processing.  However, it does contain two ADRB Case Reports and Directives which contain information regarding the facts and circumstances surrounding the applicant's separation processing.  

2.  An ADRB Case Report and Directive confirm that the applicant had an approved Bar to Reenlistment, dated 6 August 2003, which was based on a Civilian Police Department Incident Report, dated 28 September 2004.  It also confirms the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing an indecent assault upon a female PFC, not his wife, on or about 
10 April 2004.  

3.  The ADRB Case Reports also confirm that on 19 July 2004, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct – commission of a serious offense with an under other than honorable conditions (UOTHC) discharge, and that after consulting legal counsel and being advised of the impact of the separation action, the issuance of an UOTHC discharge, and of the rights available to him in connection with the separation action, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving an HD.  
4.  On 9 August 2004, the separation authority disapproved the applicant's conditional waiver for an HD and referred his case to an administrative separation board.  At this time, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an administrative board contingent upon him receiving a GD.  

5.  On 30 September 2004, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a GD.  On 22 October 2004, the applicant was discharged accordingly.  The applicant’s DD Form 214 showed the authority for his discharge was paragraph 14-12c, Army Regulation 635-200, and that the reason for his discharge was misconduct (commission of a serious offense).  At the time of the applicant's discharge, he had completed       3 years, 8 months, and 9 days of active military service during the period of enlistment under review.  He had also completed a total of 8 years, 6 months, and 24 days of active military service.

6.  On 19 October 2005, the ADRB carefully examined the applicant's record of service during the period of enlistment under review.  Full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense.  The ADRB also considered the applicant's contentions and determined that he provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated his misconduct.  

7.  The ADRB found 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, thereby diminishing the applicant's quality of service below that meriting a fully honorable discharge.  The ADRB determined the applicant's reason for discharge and the characterization of service were both proper and equitable and voted to deny relief.  Subsequently, the applicant disagreed with the ADRB decision and resubmitted his application requesting a personal appearance board.

8.  On 18 June 2008, the applicant personally appeared at an ADRB Hearing held in Chicago.  After carefully examining the applicant's record of service during the period under review, hearing his testimony and considering the recommendations and rationale, the Board again determined the applicant's discharge was both proper and equitable and voted to deny relief.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a of Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Chapter 14 of the same regulation 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, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general or honorable discharge if such is merited by the Soldier’s overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD was unjust and should be upgraded to an HD because he was falsely accused of an offense that he did not commit was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing and of a DD Form 214.  However, it does include an ADRB OSA 172 that outlines the facts and circumstances surrounding his discharge processing.  

3.  Two ADRB Case Reports and Directives confirm the applicant's separation processing was accomplished in accordance with the applicable regulation under the terms of his own voluntary conditional waiver, which was based on his receiving no less than a GD.  As a result, it is concluded that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The evidence of record also confirms the applicant received NJP for wrongfully committing an indecent assault upon a female.  The commission of this offense, along with his Bar to Reenlistment which documents other acts of misconduct clearly diminished the overall quality of the applicant's service below that meriting a fully honorable discharge.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  _____x___  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090002568



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ABCMR Record of Proceedings (cont)                                         AR20090002568


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