IN THE CASE OF:  	Mr. 

      BOARD DATE:  	21 June 2013

      CASE NUMBER:  	AR20130002130
___________________________________________________________________________

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, that his addiction to pornography led to the discharge from the Army.  When his issues came up he was dismissed by his chain of command and instead of receiving help and being brought back on post for a court-martial, he was left in civilian custody and offered no assistance except for the signing of his discharge packet.  He believes he was improperly discharged because he requested to be present at his discharge proceedings but again it was denied by his chain of command.  He believes he was suffering from a compulsive disorder which became uncontrollable through no fault of his own. He requests a new trial in which he could be properly represented.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			25 January 2013	
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				18 March 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Civil Conviction), AR 635-200,         						Chapter 14, Section II, JKB, RE-3	
e. Unit of assignment:				HHD, 434th Field Artillery Brigade, Fort Sill, OK	
f. Current Enlistment Date/Term:		29 June 2006, 6 years
g. Current Enlistment Service:		4 years, 4 months, 12 days
h. Total Service:				4 years, 4 months, 12 days
i. Time Lost:					128 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		42A10, Human Resources Specialist
m. GT Score:					95
n. Education:					HS Graduate
o. Overseas Service:				Korea
p. Combat Service:				None
q. Decorations/Awards:			AAM, AGCM, NDSM, GWOTSM, KDSM, ASR, 							OSR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:	
	
The applicant enlisted in the Regular Army on 29 June 2006, for a period of 6 years.  He was 18 years old at the time and was a high school graduate.  When his discharge proceedings were initiated he was serving at Fort Sill, OK.  His record contains several awards including an AAM and an AGCM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The service record indicates that on 25 February 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-5, for a civil conviction; specifically, for having been found guilty of a felony charge of lewd molestation against his minor dependents.  He was sentenced to confinement for 10 years (5 years were suspended).

2.  Based on the civil conviction of the charge listed above, the commander recommended an under other than honorable conditions discharge.

3.  On 1 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to appear before an administrative separation board, and did not submit a statement on his behalf.  The brigade commander reviewed the proposed action and recommended approval of the applicant’s discharge with a characterization of service of under other than honorable conditions.  

4.  On 10 March 2011, the General Court-Martial Convening Authority, approved the unconditional waiver request, waived further rehabilitation, and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was separated from the Army on 18 March 2011, under Army Regulation 635-200, paragraph 14, Section II, for misconduct (civil conviction), with an under other than honorable conditions discharge, an SPD code of JKB, and an RE code of 3.  

6.  The applicant’s record indicates he had 128 days of time lost due to civil confinement (101111-110318).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  CID Report dated 14 December 2010, that indicates the applicant was the subject of an investigation for lewd acts with a minor.

2.  Civil Court document from the State of Oklahoma, dated 7 February 2011, that indicates the applicant was found guilty of lewd molestation, and was confined to 10 years, 5 of which were suspended subject to certain conditions.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a self-authored statement with his application.

POST-SERVICE ACTIVITY: 

None provided with the application.


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 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.  The applicant's serious incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  His serious misconduct that landed him in civilian confinement clearly diminished the quality of his service below that meriting a general or an honorable discharge. 

3.  The applicant contends his addiction to pornography led to his discharge from the Army and was abandoned by his chain of command.  He believes he was improperly discharged because he requested to be present at his discharge proceedings but his request was denied.  He also believes he was suffering from a compulsive disorder which became uncontrollable through no fault of his own.  He requests a new trial in which he could be properly represented.  


4.  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 he was improperly discharged.  In fact, the applicant’s civilian conviction for lewd molestation of his minor children justifies his separation from Army.  The applicant’s statements alone do not overcome the government’s presumption of regularity.

5.  The applicant states he requested to appear before a separation board; however, the evidence of record indicates that on 1 March 2011, he consulted with legal counsel and unconditionally waived his right to appear before and administrative separation board.  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.  

6.  The applicant also contends he was mentally incompetent because of a compulsive disorder.  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. 

7.  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:  21 June 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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR20130002130

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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