IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130000147
___________________________________________________________________________

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 an upgrade of his discharge from under honorable conditions to honorable, and a narrative reason change from misconduct (civil conviction) to secretarial plenary authority. 

2.  The applicant states, in effect, the discharge he received is not equitable as it does not accurately reflect the applicant's duty performance during the period of service.  He was also subjected to two separation boards for the same event. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 December 2012
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			26 September 2007
d. Reason/Authority/SPD/RE:		Misconduct (Civil Conviction), AR 635-200, Chapter                					14, SEC II, JKB, RE-3
e. Unit of assignment:			Co F, 1st Bn, 1st SPWAR (T), Fort Bragg, NC
f. Current Enlistment Date/Term:	1 October 2001, 6 years
g. Current Enlistment Service:	5 years, 11 months, 26 days 
h. Total Service:			14 years, 2 months, 3 days
i. Lost time:				2 Days (050803-050804)
j. Previous Discharges:		RA (930722-960626)/HD; RA (960627-010930)/HD
k. Highest Grade Achieved:		E-7	
l. Military Occupational Specialty:	18C4V, Special Forces Engineer Sergeant 		
m. GT Score:				110
n. Education:				12 Years
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan, Uzbekistan (021005-020218); Iraq 						(030320-030927); Afghanistan (011202-020117)
q. Decorations/Awards:		BSM(V), BSM, MSM, JSCM, ARCOM(V), 							AAM(4),AGCM, NDSM, GWTSM, NPDR, ASR, OSR, 						SPFRTB, RGRT, CIB, EIB
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 22 July 1993, for a period of 3 years and 17 weeks.  He was 19 years old at the time of entry and a high school graduate.  He reenlisted on 1 October 2001, for a period of six years.  He was serving at Fort Bragg, NC, when his discharge was initiated.  His record also shows that he served several combat tours, achieved the rank of SFC/E-7, and earned several awards including two BSMs, MSM, JSCM, ARCOM, and an AAM.  He completed 14 years, 02 months, and 03 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 27 June 2007, the unit commander notified the applicant that he was re-initiating the separation action under the provisions of Chapter 14, paragraph 14-5a, AR 635-200, by reason of misconduct-conviction by civil court, specifically for the offense of attempting to solicit a child by computer to commit an unlawful sexual act (060708).  The commander indicated that he originally notified the applicant on 16 October 2006.  He was advised of his rights.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge.

3.  On 23 October 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and requested consideration of his case by an administrative separation board.  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 26 July 2007, the separation approving authority referred the case to the administrative separation board to determine whether the applicant should be separated from the United States Army under the provisions of AR 635-200, Chapter 14, paragraph 14-5a, Conviction by Civil Court.  He was advised of his rights. 

5.  On 8 August 2007, the applicant was notified to appear before an administrative separation board and was advised of his rights.  

6.  On 29 August 2007, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

7.  On 29 August 2007, the separation authority approved the findings and recommendations of the administrative separation board with the exception that the applicant would be discharged with a characterization of service of general, under honorable conditions.  

8.  The applicant was separated on 26 September 2007, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, an SPD code of JKB, and an RE code of 3.  

9.  The applicant's record shows he was confined by civilian authorities during the period 
3 August 2005 through 5 August 2005.  He was released and returned to military duty.




EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Administrative separation board proceedings determined the applicant should be separated prior to his expiration of term of service (ETS). 

2.  A Criminal Investigation Division (CID) report, with allied documents, dated 23 September 2005, addressing the allegation that the applicant enticed a child to commit a lewd act. 

3.  Evidence from the State of North Carolina, Moore County District Court, reflecting the appellant's guilty plea to the offense of attempting to solicit a child by computer to commit an unlawful sex act, on 12 May 2005.  The appellant was sentenced to 36 months of supervised probation, and not to have contact with the victim or her family.  The document was authenticated by the judge on 7 August 2006.  

4.  Several successful NCOERs throughout the appellant's period served where he was rated "Among the Best" by the rater and "Successful" by the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 15 November 2012; DD Form 214; copies of several awards and commendations; copies of several successful NCOERs; a copy of an administrative separation board with allied documents, dated 7 June 2006; and copies of several character statements in support of the applicant's request

POST-SERVICE ACTIVITY: 

The applicant did not provide any.

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 his civil conviction, the applicant diminished the quality his service below that meriting a general or an honorable discharge.  

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 he received was not equitable as it does not accurately reflect his duty performance during the period of service and he was subjected to two separation boards for the same event.  However, the first board that retained the applicant found that a preponderance of the evidence did not establish that he had been arrested on 
4 August 2005, under the charge of a class 1 felony; computer solicitation of a minor.  After being retained by the first board, the applicant was found guilty pursuant to his guilty plea of a misdemeanor.  The discharge was based on a finding that the he had been on 8 July 2006, convicted by civilian court for attempting to solicit a child by computer to commit an illegal sexual act.  Both boards sprang from the same misconduct by the applicant. 

5.  Although the two proceedings sprang from the same misconduct, the factual allegations were different.  The first board related to his arrest; whereas, the second related to his ultimate conviction.  The second board was based on newly discovered substantial evidence not available to the first board that being his conviction based on his guilty plea that occurred after the first board.

6.  Furthermore, 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.  

7.  The records show the proper discharge and separation authority procedures were followed in this case.  
8.  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:  8 May 2013       Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  yes [ redacted ]

Witnesses/Observers: NA 


Board Vote:
Character Change:  0	No Change:  5
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:	NA
Change RE Code to:		NA
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)		AR20130000147



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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