IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20130000555
___________________________________________________________________________

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 characterization from general, under honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, there were multiple procedural and substantial errors in the processing of his separation.  The Government used information taken from a prior enlistment that should not have been used.  He contends Army Regulations clearly limit the use of misconduct from being used as a basis of Separation during another enlistment period.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 December 2012
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			11 June 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c, 						JKQ, RE-3        
e. Unit of assignment:			3/1st IN, Rear Det, Fort Knox, KY
f. Enlistment Date/Term:		4 July 2008, 4 years
g. Current Enlistment Service:	3 years, 11 months, 08 days
h. Total Service:			18 years, 2 months, 19 days
i. Time Lost:				None
j. Previous Discharges:		USAR-940323-940901/NA										ADT-940902-950209/UNC
						USAR-950210-980521/NA											RA-980522-010415/HD 											RA-010416-020710/HD											RA-020711-060418/HD											RA-060419-080703/HD
k. Highest Grade Achieved:		E-6	
l. Military Occupational Specialty:	92G10, Food Service Operation
m. GT Score:				91
n. Education:				HS Graduate
o. Overseas Service:			SWA, Korea
p. Combat Service:			Iraq (030301-040302, 051115-061104, 								and 080531-090810)
q. Decorations/Awards:		ARCOM, AAM-3, AGCM-3, ICM-w/5CS, NDSM, 						GWOTEM, GWOTSM, KDSM, NPDR-2, ASR, OSR-4
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 22 May 1998 after serving     4 years, 1 month, and 29 days in the United States Army Reserves.  On 16 April 2001, he reenlisted for a period of 9 years prior to his enlistment 4 July 2008 for a period of 4 years; he was 33 years old at the time of his reenlistment.  He served for 14 years and 20 days and was discharged for misconduct, specifically for making a false official statement, adultery, fraternization, assaulting or willfully disobeying a superior commissioned officer, and receiving a GOMOR for a DUI.  His service record reflects he served three combat tours, achieved the rank of SSG/E-6, and earned an ARCOM, three AAM's, and three AGCM's.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 30 June 2011, 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.  Specifically for the following offenses:  

a. making a false official statement to a detective (100802) about his sexual relations with a Soldier
b. for adultery (100717)
c. receiving a field grade Article 15 due to his wrongful actions (101118)
d. having an inappropriate relationship with a junior Soldier under his direct supervision between (100501 and 100717)
e. disobeying a direct order from his superior commissioned officer (111221)
f. receiving a GOMOR for being apprehended for driving while intoxicated (071118)
g. for fraternization with junior ranking Soldiers between (080117 and 100802)

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

3.  On 19 January 2012, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.  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 19 January 2012, the applicant was notified to appear before an administrative separation board and advised of his rights.  




5.  On 8 March 2012 and again 24 April 2012, the administrative separation board convened and the applicant appeared with counsel.  On 24 April 2012, the board recommended the applicant’s discharge with characterization of service of general, under honorable conditions.

6.  On 21 May 2012, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

7.  The applicant was discharged from the Army on 11 June 2012, with a characterization of service of general, under 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. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 18 November 2010, making a false official statement (100802) and wrongfully having sexual intercourse with a woman who was not his wife (100717).  The punishment consisted of reduction to the grade of E-5, forfeiture of $1462.00, extra duty for    45 days; and restriction for 45 days (FG).
      
2.  A General Officer Memorandum of Reprimand, dated 17 January 2008, for being apprehended for driving a motor vehicle while intoxicated with a blood alcohol content of .083 at the time.

EVIDENCE SUBMITTED BY THE APPLICANT:

DD Form 214 for the period of service under review.  The applicant contends he submitted the Board findings, statement from the Soldier that said nothing happened, medical records, and a self-authored statement from his lawyer which was written at the time of his Board.  Copies of these documents were not attached to the applicant's application.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.  










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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 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 narrative reason specified by Army Regulations 635-200, under the provisions of Chapter 14, paragraph 14-12c, is "Misconduct (Serious Offense)," and the separation code is "JKQ."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

5.  The applicant contends that during his administrative separation board information was taken from a prior enlistment that should not have been used and that the information used was the basis of his separation.  The applicant's contentions was noted; however, the evidence of record shows that the president of the separation board indicated in the verbatim record, that even had the GOMOR not been included as part of the original notification, the other allegations contained in it would have been sufficient to proceed with an administrative separation board. The President also indicated that he and the voting members would not consider the GOMOR for purposes of their determinations during the Board. Thus, the original notification was valid.

6. The applicant was not discharged for receiving a GOMOR on 18 November 2007, he was discharged for making a false official statement to a detective, adultery, having an inappropriate relationship with a junior Soldier under his direct supervision, and for disobeying a direct order from his superior commissioned officer.

7.  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.  

8.  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: 24 April 2013   Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

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)		AR20130000555



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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