IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100010215 


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 an upgrade of his characterization of service from general under honorable conditions to honorable. 

2.  The applicant states he honorably completed a 4-year term of service.  He contends that at the time of his discharge, he fell under the stop-loss policy which is no longer in effect. 

3.  The applicant provides a copy of a Noncommissioned Officer Evaluation Report (NCOER) with a thru date of 28 February 2007 and a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show he enlisted in the U.S. Army Reserve (USAR) on 17 July 2002 and he enlisted in the Regular Army (RA) for a period of 4 years on 16 October 2002.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The applicant's military service record shows he was retained in service for 483 days under the provisions of Title 10, U.S. Code 12305, for the convenience of the Government.

2.  The applicant's records also show he served two tours of duty in Iraq during the period 31 March 2003 through 4 January 2004, and during the period
4 October 2006 through 17 September 2007.  

3.  The applicant's DD Form 214, Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), shows he was awarded the Joint Service Achievement Medal, Army Achievement Medal, Joint Meritorious Unit Award, U.S. Army and U.S. Air Force Presidential Unit Citation, Army Good Conduct Medal, National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, the Iraq Campaign Medal with one campaign star, Army Service Ribbon, the Overseas Service Ribbon (2nd Award), and the Combat Infantryman Badge.

4.  The applicant's records do not contain any acts of valor or significant service warranting special recognition.

5.  On 9 August 2007, the applicant was notified his commander was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c due to misconduct – commission of a serious offense with an under other than honorable conditions discharge.  The reasons cited for the separation action were that the applicant wrongfully failed to return to his unit in Iraq at the end of his environmental leave, he had sexual intercourse with a female less than 
age 16 and he committed indecent acts with a female less than 16 years of age.  The applicant was advised of his right to counsel, to present evidence in his own behalf, and to appear before a board of officers.  He was also notified that he was required to undergo a complete medical examination and a mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The applicant acknowledged receipt of the notification on the same date.

6.  On 16 August 2007, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him.  The applicant acknowledged that he understood he could encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.  The applicant requested consideration of his case by an administrative separation board and personal appearance before the board.  The applicant also requested representation by military counsel or civilian counsel at no expense to the Government.  The applicant did not submit a statement in his own behalf.

7.  On 20 August 2007, the brigade commander recommended that any further rehabilitative efforts be waived and recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2), for commission of a serious offense.  He also recommended the applicant’s service be characterized as general, under other than honorable conditions and that he be referred to an administrative separation board.  
8.  The division commander referred the applicant to an administrative separation board for disposition of his case.  On 14 September 2007, the applicant was notified to appear before a board of officers convened under the provisions of Army Regulation 635-200, chapter 14-12c, commission of a serious offense.  He acknowledged receipt of this notification on the same date.  

9.  A copy of a Report of Mental Status Evaluation, dated 26 November 2007, shows the applicant underwent a mental status evaluation and it was determined that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.  His behavior was normal; he was fully alert and fully oriented.  However, he was determined to be anxious and depressed, and his thought content was abnormal.  The remarks section of his evaluation indicated that his failure to return to Iraq was directly related to post traumatic stress disorder (PTSD) and he was psychiatrically cleared for any administrative action deemed appropriate by his command.  

10.  On 16 November 2007, a board of officers convened to determine whether the applicant should be discharged from the service under the provisions of Army Regulation 635-200, chapter 14-12c.  The applicant appeared with counsel.  The board found that by a preponderance of the evidence the applicant did commit a serious offense under the provisions of Army Regulation 635-200, chapter
14-12c, to wit:  wrongfully failed to return to his unit in Iraq at the end of his environmental leave, he did have sexual intercourse with a female under the age of 16, and he committed an indecent act with a child under the age of 16.  The board recommended that he be separated with a general discharge under honorable conditions. 

11.  The applicant's records show he was confined by civil authorities during the period 15 January 2008 through 10 July 2008.  

12.  The applicant's DD Form 214 shows he was discharged on 8 August 2008 under the provisions of chapter 14-12c, of Army Regulation 635-200, due to misconduct (serious offense).  He was issued a general discharge under honorable conditions.  He completed 5 years, 3 months, and 22 days of net active service; and 1 year, 8 months, and 18 days of foreign service.  The applicant also had 222 days of lost time.  

13. On 16 March 2009, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.



14.  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, commission of a serious offense, 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 impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

15.  Army Regulation 635-200, paragraph 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his characterization of service should be upgraded from general under honorable conditions to fully honorable because he honorably completed 4 years of service and he fell under the stop loss policy which is no longer in effect.

2.  The applicant appeared before an administrative separation board with counsel and it was determined by a preponderance of the evidence he wrongfully failed to return to his unit in Iraq at the end of his environmental leave, he had sexual intercourse with a female under the age of 16 and he committed an indecent act with a child under the age of 16.  The board recommended that he be separated with a general discharge.  On 20 March 2008, the separation authority approved the recommendation and the applicant was discharged accordingly on 8 August 2008 under the provisions of Army Regulation 635-200, chapter 14-12c.

3.  The available evidence shows the applicant’s separation processing was accomplished in accordance with the applicable regulation, all requirements of law and regulation were met, and the applicant's rights were fully protected throughout the separation process.  




4.  The available evidence shows the applicant completed more than 5 years of service.  However, the offenses for which he was discharged were serious and his good service was not sufficient to mitigate his misconduct.  Therefore, he is not entitled to a fully honorable discharge.  Additionally, the stop loss policy had no effect on the outcome of his discharge.

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)                                         AR20100010215



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ABCMR Record of Proceedings (cont)                                         AR20100010215



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