IN THE CASE OF:  	

      BOARD DATE:  	5 April 2013

      CASE NUMBER:  	AR20120021251
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the Discussion and Recommendation which follows, the Board determined the discharge was improper.  The Board found that the applicant’s misconduct did not meet the merits of AR 600-20, paragraph 14-4, (i.e., Command Policy) and that the applicant was not afforded his full rights to consult with legal counsel.  

Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority, under the provisions of Chapter 5-3, AR 635-200, with a corresponding SPD Code of JFF, and a reentry code (RE) of 1.   


      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his general, under honorable conditions discharge to fully honorable and a change to the narrative reason for his discharge.

2.  The applicant states, in effect, that he was separated for engaging in an inappropriate relationship (fraternization) which does not meet the intent of the regulation as having an inappropriate relationship (fraternization) and does not warrant a punitive discharge under the MCM, unless if he was an officer and the other party was not.  He has not been subject to any disciplinary action before this incident or after. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 November 2012
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				2 July 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense)/14-12c/JKQ/RE-3
e. Unit of assignment:				225th Brigade Support Battalion (Rear 
						Detachment), 2BCT (Rear Provisional), 25th 
						Infantry Division, Schofield Barracks, HI
f. Current Enlistment Date/Term:		16 June 2008 / 4 years
g. Current Enlistment Service:		3 years and 17 days
h. Total Service:				5 years, 6 months, 19 days
i. Time Lost:					None
j. Previous Discharges:			ARNG (051214-060124) / NA
							IADT (060125-061107) / HD
							ARNG (061108-070312) / NIF
							RA (070313-080615) / HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		68X (Mental Health Specialist)
m. GT Score:					120
n. Education:					HS Graduate
o. Overseas Service:				Hawaii
p. Combat Service:				None
q. Decorations/Awards:			AGCM; NDSM; GWOTSM; ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No



SUMMARY OF SERVICE:		

The applicant enlisted in the Army National Guard on 14 December 2005.  He was ordered to active duty training on 25 January 2006 and was honorably discharged on 7 November 2006.  He continued to serve in the Army National Guard through 12 March 2007.  On 13 March 2007, he enlisted in the Regular Army and reenlisted on 16 June 2008 for a period of 4 years.  He was 26 years old at the time of entry and a high school graduate.  He served in Hawaii.  He earned an ARCOM and completed 5 years, 1 month, and 3 days of total service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of the applicant’s service record indicates that on 17 November 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense).  Specifically for violating a lawful general regulation, to wit: AR 600-20, paragraph 4-14 x 2, by wrongfully:

	a.	engaging in an inappropriate relationship with PFC S (1 April – 15 June 2010)
	b.	engaging in an inappropriate relationship with PV2 H (1 January – 25 May 2010)

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 8 March 2011, a command judge advocate, CPT H, indicated in a memorandum for record that the applicant did not sign his election of rights at the advice of his trial defense counsel.  Accordingly, although the applicant sought legal counsel regarding his separation, he did not sign his election of rights.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 8 March 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 2 July 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and a RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Any record of violations of the Uniform Code of Military during the period under review is not available in the applicant’s record.

2.  One NCOER covering the period of 1 January 2009 through 31 December 2009, the rater assessed him as fully capable and received a 2/2 from the senior rater, an assessment of successful/superior, respectively. 

3.  One Service School Academic Evaluation Report covering period 9 June 2009 through 23 June 2009, reflects achieving course standards for completing the Warrior Leader Course.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his online application, DD Form 214 for service under current review; a defense counsel memorandum, dated 5 November 2010; 2 support statements, dated 5 and 10 November 2010; separation packet that included the following:

	a.  Article 15, dated 25 June 2010, violated a lawful general regulation, to wit: AR 600-20, Chapter 4-14 by wrongfully engaging in an inappropriate relationship on divers occasions with two enlisted female Soldiers, PFC S (1 April 2010-15 June 2010) and PV2 H (1 January 2010-25 May 2010), reduced to E-4; forfeiture of $549 x 2 months; 45 days extra duty and restriction, (FG)

	b.  One negative counseling statement, dated 17 September 2010, for violating Articles 92 and 107.

POST-SERVICE ACTIVITY: 

None provided with the application.

REGULATORY AUTHORITY:

1. 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, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

4.  Army Regulation 600-20, paragraph 4-14b, stipulates that relationships between Soldiers of different rank are prohibited if they compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; cause actual or perceived partiality or unfairness; involve, or appear to involve, the improper use of rank or position for personal gain; create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.  Paragraph 4-14c stipulates the prohibition of certain types of personal relationships between officers and enlisted personnel.  Paragraph 4-14e further provides that all military personnel share the responsibility for maintaining professional relationships; however, in any relationship between Soldiers of different grade or rank, the senior member is generally in the best position to terminate or limit the extent of the relationship, and that all members may be held accountable for relationships that violate this policy. 

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's characterization of service or a change to the narrative reason for his discharge.  

2.  The available record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violations of the Uniform Code of Military Justice.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the discharge was unjust because the basis, engaging in an inappropriate relationship (fraternization) does not meet the intent of AR 600-20 and the offense does not warrant a punitive discharge under the MCM, unless he was an officer and the other party was not.  However, the evidence shows the applicant received punishment under Article 15 for violation of AR 600-20, which is a punitive regulation for specific conduct and violations of its provisions.  In addition, 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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated.  In fact, the applicant’s Article 15 and a negative counseling statement justify the misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and there has been no new additional corroborating and supporting documentation or further evidence provided with the request for an upgrade of the discharge.   

5.  The records show the proper discharge and separation authority procedures were followed in this case.  

6.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Record Review	 Date: 5 April 2013   Location: Washington, DC

Counsel: None

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	3	No Change:  2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:	 Yes
Change Characterization to: Honorable	
Change Reason to:	 Secretarial Authority
Change Authority for Separation: Chapter 5-3, AR 635-200, with a corresponding SPD Code of JFF.
Change RE Code to: 1 
Grade Restoration to: No	
Other: NA







Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions



ADRB Case Report and Directive (cont)		AR20120021251



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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