IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 July 2013

      CASE NUMBER:  	AR20120022992
___________________________________________________________________________

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.  The applicant requests his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that during the process and following local authority's investigation of the charges surrounding his case, he believes his case would have been dropped; however, the Army seemed determined to carry his case to a court martial.  The applicant contends that with the possibility of prison time hanging over his head his lawyers recommended that he request a discharge in lieu of court martial.  Subsequently, his commanding officer recommended that he be given a general, under honorable conditions discharge.  He does not understand why the Army was so intent on pursuing his charges when the civilian authorities who investigated found them to be unsubstantiated and declined to press the issue further.  The applicant believes the charges against him and the results should be expunged from his record and that he be fully restored to active duty.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 December 2012
b. Discharge received:			Under Other Than Honorable Conditions
c. Date of Discharge:			25 April 2011
d. Reason/Authority/SPD/RE:		In Lieu of Trial by Court-Martial, Chapter 10,							KFS, RE-3
e. Unit of assignment:			HHC, 194th AR Bde, Fort Knox, KY
f. Current Enlistment Date/Term:	27 June 2008, NIF
g. Current Enlistment Service:	2 years, 9 months, 29 days
h. Total Service:			11 years, 6 months, 13 days
i. Time Lost:				None
j. Previous Discharges:		RA-991013-041013/HD										RA-041014-080626/HD					
k. Highest Grade Achieved:		E-6
l.  Military Occupational Specialty:	19D10, Cavalry Scout
m. GT Score:				115
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia 
p. Combat Service:			Iraq (030107-030701, 050119-060118, and 070328-						080611), Kuwait (020331-020930) 
q. Decorations/Awards:		BSM-w/V Device, PH-2, ARCOM-w/V Device, 							ARCOM-7, AAM-6, AGCM-2, NDSM, AFEM, ICM-						w/2CS, GWOTEM, GWOTSM, NPDR-2, ASR, CAB 
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 13 October 1999, for a period of 6 years.  He reenlisted 14 October 2004 and again 27 June 2008, as indicated on his DD Form 214.  He was 28 years old at the time of reenlistment and a high school graduated.  He served three tours of combat in Iraq and achieved the rank of SSG/E-6.  He earned a BSM-w/V Device, two PH's, an ARCOM-w/V Device, seven ARCOM's, six AAM's, and two AGCM's.  He also completed 11 years, 6 months, and 13 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on       9 November 2010, the applicant was charged with engaging in sexual contact by touching and unzipping the pants zipper of a child who had not attained the age of 12 years (100603).

2.  The applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement on his own behalf.  The unit commander recommended approval of a general, under honorable conditions discharge.  

3.  On 5 April 2011, the intermediate commander recommended approval of the Chapter 10 request with an UOTHC.  

4.  On 7 April 2011, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

5.  The applicant was discharged from the Army on 25 April 2011, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

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.  A CID Report, dated 23 September 2010, that indicates the applicant was the subject of an investigation for making a false statement and aggravated sexual contact with a child (under the age of 12).

2.  Article 32b hearing documents, dated 5 January 2011 and the recommendation of the Investigating Officer's Report, which recommended trial by General Court-Martial.

3.  Headquarters, 194th Armed Brigade, Fort Knox, Commander's memorandum, dated         27 January 2011, concurring with the recommendation of the Article 32 Investigation Officer that the applicant's case proceed to a General Court-Martial.

4.  The record contains four NCO Evaluation Reports (NCOERs), with through dates of                9 September 2008, 24 October 2009, and 15 June 2010 (overall rating of among the best) and 15 May 2009 (overall rating of fully capable).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, memorandum's, dated 18 January 2010, reference Advice on Disposition Transmittal; 29 March 2011, request for discharge in lieu of trial by court-martial; 19 April 2011, extension request for applicant; and 5 October 2012, reference recommendation for issuance of veterans benefits for the applicant; letter from the Cabinet for Health and Family Services, Department for Community Based Services, reference child protective service (CPS) unsubstantiated investigation notification letter, dated 18 January 2011, DD Form 268 (report to suspend favorable personnel actions (flag)), and two letters of support.

POST-SERVICE ACTIVITY: 

None were provided with the application.

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.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization was carefully considered.  However, after examining the applicant’s record of service, the issue and document 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 an offense 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.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

4.  The applicant contends his request for a discharge in lieu of court martial was the result of the possibility of prison time and the recommendation of his lawyers.  He does not understand why the Army was so intent on pursuing his charges when the civilian authorities who investigated found them to be unsubstantiated and declined to press the issue further.  The independent document submitted by the applicant was noted.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 

5.  The evidence or record shows, that an Article 32 Investigation determined that two compelling pieces of evidence; the testimony of the accuser and the presence of DNA evidence presented a preponderance of evidence that a crime likely took place in the case against the applicant for engaging in sexual contact.

6.  Based on the recommendation of the Article 32 Investigation Officer, the case was ordered to proceed to a General Court-Martial.  The applicant had a choice to appear before a general court-martial or to request discharge in lieu of court-martial.  By requesting the discharge in lieu of court-martial the applicant admitted guilt to the offense, or a lesser included offense.  The applicant was aware he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  

7.  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 seriousness of the offense which lead the applicant to request the Chapter 10 discharge, in lieu of trial by court-martial.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance	  Date: 29 July 2013   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: Mr. Larry Provost, The American Legion, 1608 K Street NW, Washington, DC 20005

Witnesses/Observers: Mr. William Holcombe, Brother 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents:

2.  The applicant presented the additional contention:

	a. Change the Narrative Reason to ‘Secretarial Authority’.
	b. Change the RE Code to ‘1’.
	c. Change the Separation Code [to JFF] if approved.

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

Board Vote:
Character Change:  2	No Change:  3
Reason Change:	1	No Change:  4
(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:	NA
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)		AR20120022992



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1