IN THE CASE OF:  	Mr. 

      BOARD DATE:  	3 May 2013

      CASE NUMBER:  	AR20130000138
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review 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 to upgrade his characterization of service from under other than honorable to general, under honorable conditions or honorable.

2.  The applicant states, in effect, that his discharge was inequitable because it was based on isolated incidents that occurred after over 40 months of service with no other adverse action. Prior to the incidents leading to his discipline, he was nominated for a Bronze Star, which was declined during the UCMJ process.  He believes that had there still been some time remaining on my service contract, he would have been made to fulfill his contract and would not have been discharged with under other than honorable conditions.  He feels the severity and life-time impact of the discharge, exceeds what he feels to be justified.  It has impacted his ability to find gainful employment and has excluded him from the benefits that would allow him to successfully transition to the private sector.  An upgrade in discharge would open needed opportunities and allow him to move forward.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	27 December 2012
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	5 February 2009
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense) / AR 635-200, 
			Paragraph 14-12c / JKQ / RE-3
	e.	Unit of assignment:	59th Mobility Augmentation Company, 326th 
			Engineer Battalion, 18th Engineer Brigade, Forward 
			Operating Base Diamondback, Iraq
	f.	Current Enlistment Date/Term:	26 July 2005 / 3 years, 16 weeks
	g.	Current Enlistment Service:	3 years, 5 months, 24 days
	h.	Total Service:	3 years, 5 months, 24 days
	i.	Time Lost:	22 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	21B (Combat Engineer)
	m.	GT Score:	115
	n.	Education:	HS Grad
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (071106-090103)
	q.	Decorations/Awards:	NDSM; ICM-CS; GWOTSM; NPDR; ASR; OSR; CAB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No




SUMMARY OF SERVICE: 

The applicant enlisted in the Regular Army on 26 July 2005 for a period of 3 years and 16 weeks, and retained in service for an additional 181 days for the convenience of the Government.  He was 18 years old at the time of entry and a high school graduate.  He served in Iraq.  His record shows he received a combat action badge.  He completed 3 years, 5 months, and 24 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 26 November 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense, for the offenses:

a. wrongfully consuming an alcoholic beverage, violation of Article 92, UCMJ
b. wrongfully displaying pornographic material on his personal computer, violations of Article 92. UCMJ
c. wrongfully making a false official statement with intent to deceive, violation of Article 107. UCMJ
d. indecent conduct, violation of Article 120. UCMJ
e. wrongfully endeavoring to impede an investigation, violation of Article 134, UCMJ

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 3 December 2008, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board.  The applicant submitted a statement on his own behalf.  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 an under other than honorable conditions discharge.  

4.  On 18 December 2008, the separation authority approved the right to a board waiver, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 5 February 2009, with a characterization of service of under other than 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 an RE code of 3. 

6.  The applicant’s record of service indicates 22 days of time lost for being confined from 30 November 2008 until his release on 21 December 2008, from military confinement.


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   DA Form 258 (Charge Sheet), dated 26 September 2008, referred to a summary court-martial on 21 November 2008, for the following charges and its specification(s):

	a.  Charge I, Violation of Article 92, UCMJ
Specifications 1-2: violating a lawful order on divers occasions between (071225-080101 and 080401-080830) by wrongfully consuming alcoholic beverage
Specification 3: violating a lawful general order (000830-080905) by wrongfully displaying pornographic material on his personal computer
	b.  Charge II, Violation of Article 107, UCMJ
Specification: with intent to deceive made a false official statement to LTC M (080819)
	c.  Charge III, Violation of Article 120, UCMJ
Specification: indecent conduct between (080830-080903)
	d.  Charge IV, Violation of Article 134, UCMJ
Specification 1: wrongfully have sexual intercourse w SPC D, a woman not his wife between (080501-080906)  
Specification 2: wrongfully impeding an investigation between (080905-080912) by deleting pornographic video from his personal computer

2.  DD Form 2707 (Confinement Order), dated 30 November 2008, shows a summary court-martial conviction on 28 November 2008, and an adjudged sentence of reduction to the grade of E-1, forfeiture of $200, and confinement for 30 days, (SCM).

3.  A negative counseling statement, dated 5 November 2008, for inappropriate behavior.
      
4.  An Article 32 investigation with numerous sworn and unsworn statements that indicates the applicant was the subject of an investigation for the court-martial charges listed at paragraph 1 above. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided three separate separation orders, the latter set of orders show a discharge date that coincides with his DD Form 214 for service under current review, and a copy of his ERB.

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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.

DISCUSSION AND RECOMMENDATION:

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

2.  The 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 pattern of misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred a summary court-martial conviction for multiple 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 that had he been discharged when he fulfilled his service obligation, he would not have been discharged with under other than honorable conditions characterization of service.   However, the evidence in the record confirms that the applicant was retained on active duty beyond his expiration term of service (ETS) date.  Under the provisions of AR 635-200, retention beyond a Soldier’s ETS to process an administrative separation pursuant to this regulation is not authorized unless the Soldier is pending court-martial charges.  The service record indicates the applicant was pending court-martial charges and therefore was eligible to be retained beyond his ETS date, pending final disposition of his court-martial charges, and subsequently, his administrative discharge.  

5.  The applicant contends the incidents that caused his discharge were isolated incidents in his entire Army career.  Although isolated incidents of misconduct, the discrediting entries constituted departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

6.  The applicant also contends that he had good service which included being nominated for the Bronze Star.  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 repeated incidents of misconduct or by the documented summary court-martial action for multiple violations of the Uniform Code of Military Justice.  

7.  The applicant has expressed his desire to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 

8.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

9.  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: 	Records Review	Date:  3 May 2013        Location: Washington, DC

Did the Applicant Testify?  N/A 

Counsel:  None

Witnesses/Observers:  N/A 

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:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A



















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)		AR20130000138



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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