IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130001090
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, he worked with an investigator and JAG officer at Fort Wainwright, Alaska and was told by the JAG officer the investigation against him had come back clean but no paperwork was given to him.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 January 2013	
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			3 August 2011
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			1st Bn, 5th IN, Rear Det, Fort Wainwright, AK
f. Current Enlistment Date/Term:	17 August 2006, 3 years,17 weeks 									(The applicant's ERB shows his ETS date as								8 December 2014; a reenlistment contract to								support this date was not found in the record.)
g. Current Enlistment Service:	5 years, 0 months, 15 days
h. Total Service:			5 years, 0 months, 15 days
i. Time Lost:				None	
j. Previous Discharges:		NIF	
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				109
n. Education:				GED
o. Overseas Service:			Southwest Asia, Alaska, Australia 
p. Combat Service:			Iraq (080920-090920)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ICM-w/CS-2,									GWOTSM, ASR, OSR-2, CIB
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 17 August 2006 for a period of 3 years and      17 weeks.  He was 22 years old at the time and had a high school equivalency (GED).  He served in Iraq, Australia, and Alaska.  He earned an ARCOM, AGCM and the CIB and completed 5 years and 15 days of total active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 3 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 misconduct (serious offense) for possessing child pornography.

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

3.  On 8 June 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived his right to an administrative separation Board, and 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 commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 19 July 2011, the separation authority 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 3 August 2011, 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 service record does not contain any evidence of unauthorized absences or time lost.  











EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A CID Report of Investigation, dated 25 October 2010, that indicates the applicant was the subject of an investigation for making a false statement, distribution, transportation, and possession of child pornography. 

2.  Thirty four negative and positive counseling statements dated between 22 March 2007 and            3 March 2010, for lying to a noncommissioned officer, duty responsibilities, possession of pornographic material, and failure to be at his appointed place of duty.  Several of the counseling statements were from a prior period of service.

3.  The record shows the unit commander’s recommendation memorandum indicates the applicant received an Article 15, dated 18 April 2007; however, this Article 15 was given during a prior period of honorable service. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a copy of his DD Form 214 in addition to his 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 issue 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 serious misconduct, 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 incident of misconduct and several negative counseling statements.

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 he worked with an investigator and JAG officer and was told by the JAG officer the investigation against him had come back clean but no paperwork was given to him.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that the investigation against him had come back clean.  

5.  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: Record Review	       Date:  8 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)		AR20130001090



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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