BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130017271 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as honorable vice under other than honorable conditions and in:

* item 25 (Separation Authority) something other than Army Regulation
635-200 (Active Duty Enlisted Administrative Separations), chapter 10
* item 26 (Separation Code) something other than KFS
* item 27 (Reentry (RE) Code) something other than 4
* item 28 (Narrative Reason for Separation) as something other than in lieu of trial by court-martial

2.  The applicant states he served proudly for 7 years as an Army paratrooper and deployed three times.  Then he went to Korea and everything he held dear to his heart vanished.  He was falsely accused, unjustly convicted, and served time in jail.  After 3 years, he finally won his appeal, his name was cleared, and he received 3 years of back pay.  He thought things would go back to normal but they did not and his DD Form 214 shows his service was under other than honorable conditions.

3.  The applicant provides:

* Army Discharge Review Board (ADRB) Case Report and Directive, dated 19 April 2013, with attachments and cover letter
* a statement of support
* DA Form 2823 (Sworn Statement)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 21 April 1999.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 January 2004.  He was assigned to the 94th Military Police Battalion, Korea, on or about 26 November 2006.  

2.  On 13 December 2007, he pled guilty to and was convicted by a general court-martial of one specification each of:

* violating a lawful general regulation by wrongfully having sex with Private (PV2) KNT between 1 and 28 February 2007
* wrongfully having sex with PV2 KNT, a woman not his wife, between 1 and 28 February 2007
* wrongfully having sex with Private First Class (PFC) NMS, a woman not his wife, between 20 December 2006 and 25 January 2007

3.  He also pled not guilty to but was convicted of one specification of committing an indecent assault of PFC NMS between 20 December 2006 and 25 January 2007 (vice the initial charge of rape).  

4.  He was sentenced to reduction to PV1, confinement for 9 months, and a dishonorable discharge.  He was confined at the U.S. Army Personnel Confinement Facility (PCF), Fort Knox, KY.  His sentence was adjudged on 13 December 2007.

5.  On 25 May 2008, the applicant consulted with legal counsel and was advised of the basis for the trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested a post-trial discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 chapter 10.

6.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions, deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood that once his request for a discharge was submitted, it may be withdrawn only with consent of the commander exercising general court-martial authority.

7.  General Court-Martial Order Number 10, dated 18 June 2008, issued by Headquarters (HQ), 19th Sustainment Command, Korea, showed the sentence was adjudged on 13 December 2007 and approved by the convening authority on 18 June 2008.

8.  He was released from the PCF and placed on excess leave on 20 July 2008 pending appellate review. 

9.  On 24 March 2010, the United States Army Court of Criminal Appeals determined that during the court-martial the Staff Judge Advocate Recommendation (SJAR) failed to rule on legal errors raised by the applicant's defense.  As a result, the convening authority's action of 18 June 2008 was set aside, the record of trial was returned to the Judge Advocate General for a new SJAR, and a new initial action by the same convening authority.

10.  General Court-Martial Order Number 9, dated 19 June 2010, issued by HQ, 19th Sustainment Command, showed the convening authority disapproved the findings of guilty and the sentence imposed on 13 December 2007.

11.  On 19 June 2010, the convening authority approved the applicant's request for a discharge under the provisions of Army Regulation 635-200, chapter 10, and directed his service be characterized as under other than honorable conditions.  He was discharged accordingly on 9 November 2010.

12.  The DD Form 214 he was issued confirms he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions characterization of service.  He completed 11 years and 12 days of net active service with 189 days of lost time due to being in confinement. 

13.  His DD Form 214 shows, in part, the following entries in:

* item 18 (Remarks) continuous honorable active service:  19990421-20050805
* item 25 - Army Regulation 635-200, chapter 10
* item 26 - KFS
* item 27 - 4
* item 28 - in lieu of trial by court-martial

14.  On 19 April 2013, the ADRB denied the applicant's request for an upgrade of his discharge and change in his RE code and found his discharge was both proper and equitable.

15.  The applicant provides a/an:

	a.  Affidavit, dated 14 January 2009, wherein a former unit member stated she served with the applicant in Korea and prior to departing Korea PFC NML stated she lied about the applicant sexually assaulting/raping her.

	b.  DA Form 2823, dated 5 June 2009, wherein a Specialist (SPC) NML, Fort Bliss, TX, stated she never had a physical/sexual relationship with SGT ME (a fellow unit Soldier and not the applicant).  

	c.  DA Form 2627, dated 5 October 2009, pertaining to SPC NML.

	d.  (NMS and NML appear to be the same person).

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who commits an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service at any time after court-martial charges are preferred.  Consulting counsel will advise the member concerning the elements of the offense(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally considered appropriate.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, and the narrative reason for separation is in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 4 will be assigned to members separated under these provisions with an SPD code of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of serious offenses punishable under the UCMJ with a punitive discharge.  Although his court-martial conviction may have been overturned on legal technicalities, it was the prerogative of the court-martial convening authority to accept the applicant’s request for discharge in lieu of proceeding with a subsequent trial by court-martial and he chose to do so.  

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  In requesting discharge, he admitted guilt to the charges against him.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and the type of discharge directed and the reason for separation were appropriate considering the facts of the case.

3.  In accordance with governing regulations, as he was discharged under the provision of Army Regulation 635-200, chapter 10, he was appropriately assigned the narrative reason for separation of in lieu of trial by court-martial, the SPD code of KFS, and an RE code of 4 at the time of his discharge.  These are the only entries authorized for Soldiers discharged under this provision.

4.  His records show that as a married SGT, he pled guilty to having sexual relationships with two lower enlisted Soldiers.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  His prior honorable service is acknowledged in the Remarks section of his DD Form 214.

5.  In view of the foregoing, he is not entitled to the requested relief.




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)                                         AR20130017271





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ABCMR Record of Proceedings (cont)                                         AR20130017271



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