IN THE CASE OF:	   

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130017596 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states:

	a.  He was unjustly represented at the time of his discharge.  Due to his meritorious service while in the Army, his discharge should be upgraded.  Although he was convicted in civil court, his chain of command failed to properly counsel him and offer him aid.  They knew of his issues and his obsessive compulsive disorder (OCD) to anything sexually related and for which he was seeking therapy on his own.

	b.  He went above and beyond to fulfill his duties to his country.  He showed selfless determination and reliability throughout his career.  He was the first to volunteer for any detail and stepped out of his duties as an aircraft electrician in Korea to perform duties in the understaffed orderly room.  While at Fort Drum, NY, he took a combat lifesaver course in order to volunteer as a medic.  When he was undeployable due to hearing loss, he supervised a detail of ten Soldiers to clean and ready the barracks for Soldiers returning from deployment.

	c.  At Fort Sill, OK, after he was reclassified into military occupational specialty 42A (Human Resources Specialist) and held the rank of specialist (SPC), he filled a battalion S-1 noncommissioned officer (NCO) slot and many times ran the entire S-1 shop himself for days and even weeks at a time.  He never failed a physical fitness test or range qualification, had very few adverse actions, and many meritorious ones.

	d.  Unfortunately, he had a psychosexual instability OCD that got the best of him.  His supervisors failed to help him out of the situation and added to it by testifying against him.  His first sergeant told him if he was let out of jail on bail he would have him committed to a mental institution.  That forced him to remain in custody as well as denying him proper legal counsel.  

	e.  He requested a separation board appearance but on the guidance of his NCOs he was told to waive the board as they were not going to bail him out of jail.  He never received any support or guidance from his superiors.  This clearly shows he was not represented fairly, was improperly counseled, and received a substandard discharge.  Outside of this one major incident, his actions while serving in the Army show the quality of his service met and even exceeded an honorable characterization.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 June 2006.  On 6 July 2009, he was assigned to Fort Sill.

2.  On 11 November 2010, he was arrested and incarcerated at the Lawton Police Department, Lawton, OK, on charges of lewd/indecent acts with a minor.  

3.  On 15 November 2010, the U.S. Army Criminal Investigation Command, Fort Sill, was notified by the Lawton Police Department that the applicant was arrested for sexually assaulting his 9-year old stepdaughter based on a complaint filed by his spouse.  

4.  On 7 February 2011, he was convicted by a civil court of lewd molestation against a minor and was sentenced to 10 years confinement, 5 years of which were conditionally suspended.

5.  On 25 February 2011, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct - conviction by a civil court.  Specifically, he cited the applicant's conviction of the felony charge of lewd molestation for acts committed against his minor dependents and his sentence of confinement in the Oklahoma Department of Corrections.  The commander stated he was recommending a discharge under other than honorable conditions and that the applicant may request a hearing before an administrative separation board.

6.  On 25 February 2011, he acknowledged receipt of the commander's proposed separation action.  On 1 March 2011, he consulted with legal counsel and he was advised of the basis for the discharge action initiated against him for conviction by a civil court, the type of discharge he could receive, of the procedures and rights available to him, and the effect of waiving his rights.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.  He waived consideration of his case by an administrative separation board and declined to submit a statement on his own behalf.  

7.  On 10 March 2011, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14 with an under other than honorable conditions characterization of service.  On 18 March 2011, he was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - (civil conviction) with an under other than honorable conditions characterization of service.  He completed 4 years, 4 months, and 12 days of net active service with 128 days of lost time due to being in civil confinement.

9.  On 21 June 2013, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

10.  There is no evidence in the available record that shows he was diagnosed with OCD, a psychosexual disorder, or any mental/physical condition while serving on active duty.  There is no evidence that he sought treatment for or assistance from his command in dealing with any mental/ physical condition.

11.  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 included 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was convicted by a civil court of lewd molestation against a minor and sentenced to confinement in a state correctional facility.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  There is no evidence and he did not provide any evidence that shows he was unjustly represented during his separation processing.  He contends his NCOs told him to waive consideration by an administrative separation board but there is no evidence to support this contention.  Regardless, it is not the place of NCOs to give legal advice and the evidence of record clearly shows he did consult with legal counsel and was properly advised of the procedures and rights available to him. 

4.  Although he may have served satisfactorily for a few years, it does not negate the fact that he was a convicted felon and sentenced to 10 years confinement in a civilian facility with 5 years conditionally suspended.

5.  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 also rendered his service unsatisfactory.  Therefore, he is not entitled to a general 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)                                         AR20130017596





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130017596



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1