IN THE CASE OF:  	

      BOARD DATE:  	10 May 2013

      CASE NUMBER:  	AR20130000269
___________________________________________________________________________

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 other than honorable conditions to general, under honorable conditions or honorable.

2.  The applicant states, in effect, the accusations were false and unfounded; he had questionable and objectionable and unfair legal representation and his legal proceedings were suspended.  His chain of command and the witness were prejudiced and indifferent.  He feels his punishment was selective and discriminatory as well as unfair.  He was not in his right frame of mind at the time the purported offense was committed; he had untreated Post Traumatic Stress Disorder (PTSD), behavioral, adjustment disorders, other emotional and physical problems and the Army cast him out.  The VA has denied him treatment and compensation because of the discharge he received.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		27 December 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			21 September 2011
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:			HHC, 1-229th AV Regiment, APO AE 09311
f. Current Enlistment Date/Term:	17 November 2007, 6 years
g. Current Enlistment Service:	3 years, 10 months, 5 days
h. Total Service:			8 years, 2 months, 21 days
i. Time Lost:				None
j. Previous Discharges:		RA (030703-071119), HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	74D10, Chemical Operations Specialist/19K10 M1 						Armor Crewman
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			Germany/Southwest Asia
p. Combat Service:			Iraq x 3 (040210-050131), (080613-081217), 							(110309-110826) 
q. Decorations/Awards:		ARCOM-4, AAM, AGCM-2, NDSM, ICM-W/3 CS 						GWOTEM, GWOTSM, NPDR, ASR, OSR-4, CAB 						PUC, VUA, ASUA-2
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			No




SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 3 July 2003, for a period of 5 years.  He was 32 years old at the time of entry and a high school graduate.  On 17 November 2007, he reenlisted for a period of 6 years and was 37 years old at the time. He was serving in Iraq, when his discharge was initiated.  His record also shows that he served three combat tours and earned several awards including 4 ARCOMs, an AAM, and 2 AGCMs.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      1 August 2011, the applicant was charged with the following offenses:

     a.  maltreating SPC M, a person subject to his orders, by demanding sexual favors from her in exchange for not reporting that he discovered her engaging in sexual acts with another person (110715).

     b.  wrongfully engaging in sexual contact with SPC M, by grabbing her buttocks, without legal justification or lawful authorization and without the permission of SPC M (110705).

     c.  with unlawful intent to obtain an advantage, to wit: sexual favors, by communicating to SPC M a threat accusing her of a crime (110705).

2.  On 3 August 2011, 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 applicant’s chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 19 August 2011, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

5.  The applicant was discharged from the Army on 21 September 2011, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and a RE code of 4.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains five NCO Evaluation Reports covering the periods of 1 September 2007 through 1 February 2011.  The applicant was rated as fully capable on one of the NCOERs (16 February 2008 through 15 February 2009) and he received among the best ratings on four (1 September 2007 through 15 February 2008) and (16 February 2009 through 1 February 2011).

2.  The record does not contain any counseling statements or actions under the UCMJ.

 EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 17 December 2012; DD Form 214, dated         21 September 2011; Certificate of Achievement; Letter, U.S. Army Chicago Recruiting Battalion Biography; Certificate/with Translation, German Marksmanship Award (Gold), dated 18 August 2005; Self-Authored Statement, eight pages; What Does Duty in Iraq Mean to Me; Applicant’s Letter to Court Martial Convening Authority, two pages; Letter, Brigade Career Counselor; News Paper Article; seven Support/Character Statements, three pages, dated            19 August 2011, 16 August 2011, 18 August 2011; 18 August 2011, 11 August 2011,              20 August 2011, 20 August 2011; New Paper Father’s Day Photo; Certificate, Order of the Saber; Chapter 10 Discharge Packet, thirty pages; E-mail traffic, fifty ages; and a Memorandum, Commander’s Recommendation for Applicant, dated 9 February 2009.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions 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.  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.

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 a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization of service was carefully considered.  However, after examining the applicant’s record of service, 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 for the good of the service 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.  His record documents he served three tours in combat, showed acts of significant achievement and valor; however it did not support the issuance of a general, under honorable conditions or an honorable discharge by the separation authority and it does not support an upgrade of a general, under honorable conditions or an honorable discharge at this late date.  

4.  The applicant contends the accusations were false and unfounded; he had questionable and objectionable and unfair legal representation; and his legal proceedings were suspended.  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 these contentions.  There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that he was denied due process.

5.  The applicant further contends his chain of command and the character witness were prejudiced and indifferent.  Although the applicant alleges that he was a victim of racism during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence to support this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

6.  The applicant feels his punishment was selective and discriminatory as well as unfair.  However, 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.  Therefore, the character of the applicant’s discharge is commensurate with his overall service record. 

7.  The applicant additionally contends he was not in his right frame of mind at the time the purported offense was committed; he had untreated PTSD, behavioral, and adjustment disorders, other emotional and physical problems and the Army cast him out.  However, the service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

8.  Furthermore, the applicant contends the VA denied him treatment and compensation because of the discharge he received.  Eligibility for veteran's benefits to include medical and 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.

9.  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 overcome the reason for discharge and the characterization of service granted.

10.  The records show the proper discharge and separation authority procedures were followed in this case.  

11.  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:    10 May 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: NA

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:		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)		AR20130000269



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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