IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 May 2013

      CASE NUMBER:  	AR20130000226
___________________________________________________________________________

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 request is based on the grounds that he takes great pride of his military record.  He has two prior honorable discharges with good conduct medals, including other awards.  His record reflects he conducted himself honorably and maintained high professionalism.  He accepts his incarceration, but it in no way reflects his actual character and should not impact how he served his country.  His prison record reflects that he has always sought ways to improve himself and committed to bettering the institution.  He is a proud combat veteran with 12 years of meritorious service, of which seven and a half years are active duty service.  He would readily serve his country again without self-prevention.  He is devoted to his country and its defense above all else.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	17 December 2012
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	16 May 2007
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Civil Conviction), AR 635-200, Chapter 
			14, Section II, JKB, RE-3
	e.	Unit of assignment:	602nd Maintenance Company, 553rd Corps 
			Sustainment Support Battalion, Fort Hood, TX
	f.	Current Enlistment Date/Term:	10 September 2003, 4 years
	g.	Current Enlistment Service:	3 years, 1 month, 7 days
	h.	Total Service:	12 years, 19 days
	i.	Time Lost:	549 days
	j.	Previous Discharges:	RA (010828-030909) / HD
			USAR (900708-950430) / NA
			RA (870708-900707) / HD
			USAR (870501-870707) / NA
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	92G10, Food Service Operations Specialist
	m.	GT Score:	116
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA (dates NIF)
	p.	Combat Service:	Iraq (April 2003-April 2004)
	q.	Decorations/Awards:	AAM; AGCM; GWOTSM; ASR
	r.	Administrative Separation Board: 	Yes
	s.	Performance Ratings:	None
	t.	Counseling Statements:	No
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:		

Concurrent to the applicant’s enlistment under review, records reflect he enlisted in the Regular Army on 28 August 2001, after a break in service from his first enlistment on 8 July 1987, and reenlisted on 10 September 2003 for a period of 4 years.  He was 20 years old at the time of entry and a high school graduate, and 36 years old at his latter reenlistment.  There is no record of any overseas assignment; however, witness testimony reflects he had served in Iraq from April 2003 through April 2004.  He earned an AAM, and completed over seven years of active duty service.  Records reflect he was still incarcerated at the time of his discharge.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 14 November 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of conviction by a civil court and receiving a sentence of confinement in the state of Georgia (051114) for offenses of obscene material, child molestation, and incest.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 
 
3.  On 18 January 2007, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions.  The applicant did not submit 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 26 March 2007, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 29 March 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.
  
6.  On 2 May 2007, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.

7.  The applicant was discharged from the Army on 16 May 2007, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, Section II, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB and an RE code of 3. 

8.  The applicant’s record of service indicates a total of 549 days of time lost for being confined in civilian confinement facilities (040812-040908) for 28 days, confinement by civil authorities subsequent to his arrest (040811), and (051114-070516) for 521, as a result of an adjudged sentence).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A CID Report, dated 12 August 2004 and updated 20 December 2004, indicates the applicant was the subject of an investigation for incest, child molestation, and obscene material.  The preliminary report included a civilian police department report, dated 12 August 2004.

2.  Superior court documents reflecting final disposition of criminal offenses, dated 14 November 2005, further indicated the applicant received a felony sentence for the offenses of child molestation, and incest. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his ERB and discharge orders.

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 receiving a felony conviction by a civilian court for serious offenses, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by the documented conviction.

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 his request for upgrading his discharge is based on his good service which included two previous honorable discharges and his awards.  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 serious incidents of misconduct for which he received a civil conviction.

5.  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.  

6.  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:  17 May 2013          Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

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)		AR20130000226



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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