Applicant Name:  ?????

Application Receipt Date: 2011/11/07	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant contends, the following through counsel :

Issue 1:  The applicant is requesting a review of his Characterization of Service based on the assertion that his current characterization of Under Other Than Honorable Conditions is inequitable. The reason for the applicant’s discharge was that his command willfully and purposely withheld vital exculpatory evidence from him during the course of the General Court Martial proceedings. The omission of such; not only violated his due process rights, but mislead him into believing a resignation for the good of the service was in his best interest.

Issue 2:  The applicant is requesting a review of his Characterization of Service of “Under Other
Than Honorable Conditions” based on the propriety of that characterization in that the U.S.
Army did not follow its Constitutional precedent (US v. Brady, US v. Giglio), thus violating the Military Rules of Evidence by determining his discharge.  For this issue, the applicant asks that The Army Review Board Agency apply and incorporate the facts referenced in the previous issue.

The defense decided to proceed to an Article 32 investigation to determine the validity of the charges and truthfulness of the accuser.  During the Article 32 investigation, it was determined that the accuser had not only engaged in the same misconduct toward the applicant and misled CID during their investigation.  What the defense was not aware of was that the victim, SGT T S, had made sexual allegations against commissioned officers before.  SGT T S was an alleged victim in the Aberdeen sex cases of 1996.   The defense was never made aware of the Aberdeen sex scandal nor was the Article 32 officer.

The applicant asks that the due process violations of his command be corrected and upgrade his discharge to Honorable.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 110217
Discharge Received: 			   Date: 110908   Chapter: 3-13     AR: 600-8-24
Reason: In Lieu Of Trial By Court-Martial	   RE:     SPD: DFS   Unit/Location: Headquarters and Headquarters Company, 4/3 Advise and Assist Brigade, Camp Ramadi, APO AE 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 







IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 990813    Current ENL Term: Indef Years  ?????
Current ENL Service: 	12  Yrs, 00 Mos, 26 Days ?????
Total Service:  		18  Yrs, 09 Mos, 26 Days ?????
Previous Discharges: 	RA      921112 – 950608/HD
                                       USAR 950609 – 970901/HD
                                       USAR 970902 – 990812/HD
Highest Grade: O-4		Performance Ratings Available: Yes    No 
MOS: 15A A2 Aviation, General   GT: NA   EDU: College Grad   Overseas: Germany, Yugoslavia, SWA         Combat: Iraq (040208 - 050209), (081017 - 081018), (100713 - 110515)
Decorations/Awards: BSM x 2, MSM, AM x 2, ARCOM x 4, JSAM, AAM x 3, NDSM x 2, SWASM, KCM w/BSS, ICM w/3CS, GWOTEM, GWOTSM, NCOPDR, ASR, OSR x 6, NATO MDL, MUC, CAB

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 17 February 2011, the applicant was charged while at or near Camp Ramadi, Iraq:
       
       a.  having wrongfully engaged in sexual contact with SGT TS, by grabbing her breast, and such contact was with and without her permission (100801 - 100815); 
       b.  wrongfully engaged in sexual contact with SGT TS, by placing her hand on his clothed penis, and such contact was with and without her permission (100901 – 101201); 
       c.  on diverse occasions wrongfully engaged in sexual contact with SGT TS, by rubbing his clothed penis against her while she was at her work station and such sexual contact was with and without her permission; 
       d.  on divers occasions intentionally exposed in an indecent manner his penis while in or near the offices of the Brigade Aviation Element Air Mission Request Cell (100901 – 101225).  
       
       On 5 May 2011, the applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 3, AR 600-8-24, for the good of the Service in lieu of trial by a general court-martial or a board of officers.   The applicant indicated he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The chain of command recommended approval of the resignation for the good of the Service with issuance of an under other than honorable discharge.  
       
       On 8 August 2011, the Deputy Assistant Secretary (Army Review Boards) reviewed the recommendation of the Army Ad-Hoc Review Board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

       b.  Legal Basis for Separation:  
       Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records during the term of service under review, the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The evidence of record shows that the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  The applicant voluntarily requested resignation in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24.  
       
       The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service.  The analyst concluded that by the misconduct, the applicant diminished the overall quality of his service below that meriting a fully honorable or general, under honorable conditions discharge.
       
       Issue 1.  The applicant is requesting a review of his Characterization of Service based on the assertion that his current characterization of Under Other Than Honorable Conditions is inequitable. The reason for the applicant’s discharge was that his command willfully and purposely withheld vital exculpatory evidence from him during the course of the General Court Martial proceedings. The omission of such; not only violated his due process rights, but mislead him into believing a resignation for the good of the service was in his best interest.  
       
       Issue 1 is rejected:  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that his command withheld exculpatory evidence.  The applicant’s/counsel’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or substantial credible evidence in support of his contention.  
       
       Counsel has also failed to show that the information purportedly withheld by the government, that being the accuser’s claim of being raped by a commissioned officer in 1996 while at Aberdeen proving grounds and an alleged inappropriate relationship with her drill instructor in the same timeframe, was exculpatory.  The applicant’s counsel was aware of the rape allegation, as evidenced by the fact that the accuser was questioned about this during the Article 32 investigation.  That this 1996 rape allegation against the officer was dismissed does not make it exculpatory.  Barring clear evidence of a determination the accuser made a false rape allegation – and the applicant provides none - evidence concerning this dismissed rape charge would not have been admissible at trial under Military Rules of Evidence (M.R.E.) 412.  Even if true that the rape charge was dismissed due to concerns about the accuser’s credibility, that does not equate to a determination that the offense did not occur. The purported relationship between the accuser and her drill sergeant is likewise irrelevant and would not have been admissible at trial.  Again, M.R.E. 412 would bar admission of this evidence.  
       
       Even if the Board accepted applicant’s contention that the evidence of past claims or actions by the accuser should have been revealed earlier in the court-martial process, it does not render the applicant’s characterization improper or his decision to submit a resignation in error.  The applicant admitted to several instances of inappropriate conduct involving the accuser, to include exposing his genitals in their office and inappropriate physical contact.   This occurred in a deployed environment over a period of about 5 months.  Given the nature of these offenses, even if involving consensual conduct, it was clearly within the realm of the command’s discretion to pursue a court-martial.  To say command would not have continues to pursue these charges if evidence of the accuser’s credibility had been provided is speculative.  
       
       Moreover, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Issue 2.  The applicant is requesting a review of his Characterization of Service of “Under Other
       Than Honorable Conditions” based on the propriety of that characterization in that the U.S. Army did not follow its Constitutional precedent (US v. Brady, US v. Giglio), thus violating the Military Rules of Evidence by determining his discharge.  For this issue, the applicant asks that The Army Review Board Agency apply and incorporate the facts referenced in the previous issue.
       
       Issue 2 is rejected:  The applicant contends that the Army withheld evidence that shows the involvement of SGT TS in a previous sexual misconduct case; and this should be considered as exculpatory evidence, however, the applicant has not demonstrated where the contention of such new evidence is material either to guilt or to punishment; therefore, the argument is without merit.  
       
       Command and the Deputy Assistant Secretary of the Army (Review Boards), who makes the final decision on a resignation request for the Secretary of the Army, are not bound by the Military Rules of Evidence when considering information pertinent to a resignation.  Any information contained in the officers records, records associated with a court-martial, and matters submitted by the accused may be considered.  The alleged past acts by the accuser could have been considered.  However, the absence of these matters was harmless.
       
       Whether this evidence of the accuser’s credibility would have affected the recommendations by the chain of command concerning service characterization is immaterial.  The Command's recommendations concerning a characterization if a resignation in lieu of trial are just that – recommendations.  The DASA (RB) is not bound by those recommendations.  
       
       The DASA (RB) considered the Article 32 evidence, to include the applicant’s admission that he engaged in inappropriate contact with the accuser before accepting the resignation with an other than honorable conditions characterization.  This was within the DASA's discretion, and under AR 600-8-24, is normally the appropriate characterization upon acceptance of a resignation in lieu of trial.  The applicant admitted to sexual contact with an enlisted female, exposing his genitals in an office setting, and other inapropriate conduct in a deployed environment.  It was clearly within the DASA (RB’s) discretion to direct a service characterization of under other than honorable conditions under these circumstances.  The applicant has failed to provide sufficient evidence to show that this decision was arbitrary, capricious, or contrary to law.   
       
       Therefore, the analyst determined that the reason for discharge and the characterization of service remain both, proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 9 May 2012         Location: Washtington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: yes [redacted]

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with an attached statement through counsel, Congressional Correspondence, Correspondence as noted to the Army Review Board, OMPF Documents, CNN US Sexual Misconduct Article, Various Email, University Grade Report, ORB  and a DD Form 214.
















VIII.  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.
        
IX.  Board Decision						
Board Vote:
Character - Change 2    No change 3
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
















Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110022264
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