IN THE CASE OF:  	

      BOARD DATE:  	9 September 2013

      CASE NUMBER:  	AR20120022605
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.





      
      
      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.  On behalf of the applicant, counsel requests the under other than honorable conditions discharge be upgraded to honorable and change to the narrative reason for his discharge to Expiration of Term of Service.

2.  Counsel states, in effect, that several female Soldiers who were pending UCMJ actions,   made false allegations against the applicant (1SG) for inappropriate sexual misconduct.  The allegations were fabricated in order to cover up their misconduct.  CID interviewed many female Soldiers in the applicant’s unit attempting to uncover something that would stick.  On 
6 July 2000, after the CID investigation was complete, the applicant had court-martial charges preferred for nine alleged incidents of maltreatment, five incidents of fraternization, and three incidents of adultery.  The applicant was charged for the same things over and over.  After the Article 32 hearing, three specifications were dismissed, as the testimony did not support accusations made by the government.  However, fourteen specifications remained on the charge sheet.  On 28 July 2000, the charges were referred to a general court-martial. 

3.  The appellant was faced with a daunting decision of trying to defend himself against piled on charges for fabricated events, or requesting a discharge in lieu of trial in order to protect himself and his family from the humiliation and pain involved in a trial involving made up sexual allegations.  After careful consideration, he requested a discharge in lieu of trial by court-martial, after seventeen successful years of service.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			14 December 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				4 April 2001
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200 							Chapter 10, KFS, RE-4
e. Unit of assignment:				C Company, 710th Main Support Battalion 							DISCOM, 10th Mountain Division (LI), Fort 							Drum, NY
f. Enlistment Date/Term:			25 July 1998, last reenlistment contract NIF
g. Current Enlistment Service:		2 years, 8 months, 9 days
h. Total Service:				17 years, 2 months, 18 days
i. Time Lost:					None 
j. Previous Discharges:			RA (840117-890227), HD 										RA (890228-941129), HD										RA (941130-951214), HD										RA (951215-980724), HD
k. Highest Grade Achieved:			E-8
l. Military Occupational Specialty:		91B1P/Medical Nurse
m. GT Score:					112
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Kuwait (900915-910419)
q. Decorations/Awards:			BSM, MSM, ARCOM-4, AAM-7, AGCM-5 							NDSM, SWASM-3, NCOPDR-3, ASR, EFMB 							KLM (SA), KLM (K), MUC
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 17 January 1984, for a period of 3 years.  He was 20 years old and was a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 91B10, Medic.  He reenlisted five times and was serving at Fort Drum, NY, when his discharge proceedings were initiated.  His record documents a BSM, MSM, ARCOM-4, AAM-7, AGCM-5, NCOPDR-3, and an EFMB.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history does not include any lost time.  

2.  On 30 October 2000, court-martial charges was preferred against the applicant for violating the following:  

     Charge I  Violation of the UCMJ, Article 93
	
	Specification 1.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, from on or about 1 May 1999, to on or about September 1999, maltreat SGT (E-5) M, a person subject to his orders, by making deliberate and repeated offensive comments of a sexual nature to her, to wit: “You have a nice body,”“Do you find me attractive?,” “Will you have sex with me,” and “Would you have sex with me if I was not married” or words to that effect.

	Specification 2.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, on or about 29 June 1999, maltreat PVT (E-2) N, a person subject to his orders; by giving her a single barracks room in exchange for sexual intercourse.  

	Specification 3.  In that MSG E, U.S. Army, did, at near Fort Drum, New York, between on or about 29 June 1999, between on or about 14 March 2000, maltreat PVT N, a person subject to his orders, by making deliberate and repeated offensive comments of a sexual nature to her, to wit: “Where’s my love today,” What have you done for me lately,” “My phone’s not ringing, and you have my number,” and “Do you like black cock” or words to that effect.

	Specification 4.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, on or about 14 March 2000, maltreat PVT N, a person subject to his orders, by offering to influence her career and pay in exchange for sexual favors, to wit: “I’ll take care of your Article 15” and “I won’t let you down” or words to that effect while undoing his pants buttons in PVT N’s presence.

	Specification 5.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, on or about 4 January 2000, maltreat PFC (E-3) B, a person subject to his orders, by making deliberate and repeated offensive comments of a sexual nature to her, to wit: “You need to get to know your First Sergeant (1SG)” and “You need to shake your thing if you want a promotion” or words to that effect. 

	Specification 6.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, from between on or about August 1999 to on or about March 2000, maltreat Ms. M-H, the former SPC (E-4) M-H, a person subject to his orders, by making deliberate and repeated offensive comments of a sexual nature to her, to wit: “How can I get my foot wet,” and “How can I get with you” or words to that effect.

	Specification 7.  In that MSG E, U.S. Army, did, at or near Watertown, New York, on or about 30 December 1999, maltreat PFC D, a person subject to his orders, by using his rank and position as a 1SG coerce PFC D to have sexual intercourse and oral sodomy with him. 

	Specification 8.  In that MSG E, U.S. Army, did, at or near Watertown, New York, on or about 2 September 1999, maltreat PFC D, a person subject to his orders, by using his rank and position as a 1SG to coerce PFC D to meet him at the Microtel, Watertown, New York for purposes of engaging in sexual intercourse with her.

     Charge II  Violation of the UCMJ, Article 92

	Specification 1.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, from on or about June 1999, to on or about September 1999, violate a lawful general regulation, to wit: paragraph 4-14b, Army Regulation 600-20, dated February 1999, by wrongfully fraternizing with SGT M by engaging in an exploitative and coercive relationship with her or a relationship that involved or appeared to involve the improper use of rank and position for MSG E’s personal gain.

	Specification 2.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, from between on or about 29 June 1999, to on or about 14 March 2000, violate a lawful general regulation, to wit: paragraph 4-14b, Army Regulation 600-20, dated 3 February 1999, by wrongfully fraternizing with PVT N by engaging in an coercive and exploitative relationship with her or a relationship that involved or appeared to involve the improper use of rank and position for MSG E’s personal gain.

	Specification 3.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, on or about on or about 23 September 1999, violate a lawful general regulation, to wit: paragraph 
4-14b, Army Regulation 600-20, dated 3 February 1999, by wrongfully fraternizing with PFC D by engaging in a coercive and exploitative relationship with her or a relationship that involved or appeared to involve the improper use of rank and position for M’s personal gain.
	Specification 4.  In that MSG E, U.S. Army, did, at or near Fort Drum, New York, on or about 30 November 1999, violate a lawful general regulation, to wit: paragraph 4-14b, Army Regulation 600-20, dated 3 February 1999, by wrongfully fraternizing with PFC D by engaging in a coercive and exploitative relationship with her or a relationship that involved or appeared to involve the improper use of rank and position for MSG E’s personal gain.

	Specification 5.  In that MSG E, U.S. Army, at or near Fort Drum, New York, on or about February 2000, did maltreat SPC S, a person subject to his orders, by offering to influence and or influencing her early separation from the U.S. Army in exchange for sexual intercourse.

	Specification 6.  In that MSG E, U.S. Army, at or near Fort Drum, New York, from on or about November 1998, to on or about April 2000, did maltreat SPC S, a person subject to his orders, by making deliberate and repeated offensive comments of a sexual nature to her, to wit: “What are you going to do for me,” “Your debts are due,” “Is there something you are supposed to give me?,” “Don’t you owe me something?,” “I am interested in you,” and repeatedly soliciting her for sexual intercourse or words to that effect.

     Charge III  Violation of the UCMJ, Article 134

	Specification 1.  In that MSG E, U.S. Army, a married man, did, at or near Fort Drum, New York, on or about 29 June 1999, wrongfully have sexual intercourse with PVT N, a woman not his wife.

	Specification 2.  In that MSG E, U.S. Army, a married man, did, at or near Watertown, New York, on or about 30 November 1999, wrongfully have sexual intercourse with PFC D, a woman not his wife.

	Specification 3.  In that MSG E, U.S. Army, a married man, did, at or near Fort Drum, New York, on or about February 2000, wrongfully have sexual intercourse with SPC S, a woman not his wife.

	Specification 4.  In that MSG E, U.S. Army, did, from on or about May 1999, to on or about October 1999, wrongfully in writing communicate to Captain (O-3) C, certain indecent language, to wit: “You know you just need some down-right dirty sex and I’m volunteering for the task,” “I eat it all the way to the rim,” “That stuff of yours is so good I really wouldn’t care who knew that I was hitting it,” and “Be sure that you are not missing a pair of underwear” or words to that effect.

3.  On 30 March 2001, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

4.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting guilt of the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant confirmed he had no desire to perform further military service and indicated he would not submit a statement in his own behalf.  

5.  On 30 March 2001, the separation authority approved the applicant's request for discharge and directed he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

6.  On 4 April 2001, the applicant was discharged accordingly.  DD Form 214 (Report of Separation from Active Duty), shows he completed 17 years, 2 months and 18 days of creditable active military service.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no negative counseling’s or actions under the Uniform Code of Military Justice.

2.  The record contains 18 EERs/NCOERs covering the period May 1987 through March 2000.  All of the reports rated the applicant “Fully Capable” or “Among the Best.”

3.  The record contains five successful Academic Evaluation Reports (AERs).  The applicant exceeded course standards in three of the five courses.
 
EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a copy of his DD Form 293; DD Form 214; a statement from his counsel, 6 pages; a CD containing the CID investigation; documents from General Court-Martial proceeding, 4 pages; 3 NCOERs; an ERB; and AMHRR documents, 28 pages. 

POST-SERVICE ACTIVITY: 

The applicant contends he completed both his Master of Business Administration (MBA) in Health Care Management and his PhD in Human Service Research, he is a social science researcher, he is President/CEO of a nonprofit that feeds over 8,000 families and provides community services for over 25,000 socially and economically challenged people annually, he is a William C. Friday Fellow for human relations and has made historic changes in both gender equality and racial reconciliation in the state of North Carolina. 

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed 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 in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  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.

3.  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. 

4.  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 identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 

DISCUSSION AND RECOMMENDATION:

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

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  On behalf of the applicant, counsel contends the applicant was faced with a daunting decision of trying to defend himself against piled on charges for fabricated events, or requesting a discharge in lieu of trial in order to protect himself and his family from the humiliation and pain involved in a trial involving made up sexual allegations.  However, 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 falsely charged.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

4.  Counsel also contends that the applicant had seventeen successful years of service.
The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the court-martial charges that were filed against him.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

5.  In addition, the applicant was separated under the provisions of Chapter 10, with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "in lieu of trial by court-martial,” and the separation code is "KFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

6.  Records show the proper discharge and separation authority procedures were followed in this case.

7.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance   Date: 9 September 2013   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  Yes

Witnesses/Observers: No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Biographical Sketch
 	b.  Character Letter (2)
  	c.  Transcripts
	d.  Background Check

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  1	No Change:  4
Reason Change:	0	No Change:  5
(Board member names available upon request)


Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			NA
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)		AR20120022605



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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