IN THE CASE OF:	   

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140003842 


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 to change the narrative reason for his discharge from "misconduct" (civil conviction) to a general discharge under honorable conditions.

2.  The applicant states:

* that the narrative reason for his discharge was "misconduct" (civil conviction)
* he wishes for the record to show that he was never convicted of a crime
* he was placed on probation for 7 years for a 2005 crime 
* the crime occurred prior to his reenlistment in 2005, so it should have not been the reason for his separation from the Army
* he was arrested for violating his probation in 2006 and served 2 months in jail
* it was later discovered that his violation was a mistake and was dismissed by the courts and he was continued on probation
* in June 2010, he received documentation stating that he was exonerated of the crime and it was deemed that he did not have a criminal record

3.  The applicant provides his DD Form 214 and a Petition for Discharge of Defendant (First Offender Act).


CONSIDERATION OF EVIDENCE:
1.  The applicant enlisted in the Regular Army on 7 February 2002.  He served in Kuwait/Iraq from 25 January to 29 July 2003 and 5 January 2005 to 7 January 2006.

2.  The applicant's records contain:

	a.  a memorandum and allied documents, dated 19 March 2004, Subject:  Criminal Investigation Command, Report of Investigation, which states that he was investigated for and convicted of indecent assault upon a child under 16.

	b.  a Georgia Bureau of Investigation, Sex Offender Registration Notification Requirements, dated 6 January 2005, which shows he pled guilty to child molestation, was adjudicated as a first offender, and placed on probation for 
7 years.

3.  On 17 October 2006:

	a.  he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 14-5, due to miscount (civil conviction).

	b.  he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.

	c.  the applicant's company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-5 due to his civil court findings were tantamount to a finding of guilty.

4.  On 15 November 2006, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-5, by reason of conviction by civil court.  He directed that the applicant be furnished a general, under honorable conditions discharge.

5.  On 4 December 2006, the applicant was discharged accordingly.  He completed 4 years, 9 months, and 28 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14b with service characterized as under honorable conditions (general).  He was assigned a separation code of JKB and a narrative reason of separation as misconduct (civil conviction).
6.  He submitted a Petition for Discharge of Defendant (First Offender Act) and Order of Discharge, dated 15th June 2010, that states that after having been placed on probation on 6 January 2005 for a period of 7 years, he was discharged because he fulfilled the terms of his probation and therefore:

* he was discharged without court adjudication of guilt 
* the discharge completely exonerated him of any criminal purpose
* the discharge shall not affect any of his civil rights or liberties
* he would not be considered to have a criminal conviction
* the discharge would not be used to disqualify him from employment

7.  On 6 October 2010, the Army Discharge Review Board reviewed all the evidence and factors of the applicant's discharge and denied his request for an upgrade of his discharge in its entirety.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, conviction by civil authorities, 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 considered appropriate.  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 contentions that his discharge should be upgraded because he was exonerated for his crime were found to be lacking in merit. 

2.  The evidence of record shows he was charged with indecent assault upon a minor child under the age of 16 and discharged for miscount due to a civilian conviction.  He was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14, for misconduct (civil conviction).  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
3.  He submitted a Petition for Discharge of Defendant and Order of Discharge because was released from probation after having fulfilled the terms of his probation under the first offender's program.  However, while the civil court may have provided an alternate disposition of the charges, it does mean that he did not commit the offenses.

4.  The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20140003842





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ABCMR Record of Proceedings (cont)                                         AR20140003842



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