IN THE CASE OF:  	

      BOARD DATE:  	3 July 2013

      CASE NUMBER:  	AR20130002500
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and notwithstanding 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 under other than honorable conditions discharge to honorable.

2.  The applicant states, in effect, he was discharged due to one isolated incident in 78 months of service.  He served overseas and completed multiple combat operations.  He received positive evaluations and several awards.  While he was separated and going through divorce proceedings he was charged with adultery.  He was advised by his legal counsel to request a chapter 10 discharge.  Consequently, he received an under other than honorable conditions discharge, was reduced to E-1, and obligated to repay a portion of his reenlistment bonus.  His discharge prevents him from belonging to and participating in a civilian veteran organization and obtaining a position with the veterans’ hospital.  He is very proud of his enlistment and his overseas service.  He would like to have the opportunity to show his pride by serving other service members and veterans in his community as an honorable discharged E-1.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		30 January 2013			
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			9 July 2005	
d. Reason/Authority/SPD/RE Code:	In Lieu of Trial By Court-Martial, 635-200, Chapter 10 						KFS, RE-4	
e. Unit of assignment:			A Battery, 6th Battalion, 52nd Air Defense Artillery   						1st Infantry Division, Ansbach, GE			
f. Current Enlistment Date/Term:	16 January 2002, 4 years
g. Current Enlistment Service:	3 years, 5 months, 24 days
h. Total Service:			6 years, 6 months, 17 days	
i. Time Lost:				None
j. Previous Discharges:		RA (981223-020115), HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	14E10, Support Crew Member
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			Korea, Germany, SWA
p. Combat Service:			South West Asia (011013-020227), and (030317-							030624)
q. Decorations/Awards:		ARCOM, AAM-2, AGCM-2, NDSM, GWOTEM	 							GWOTSM, KDSM, AFEM, NPDR, OSR-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 23 December 1998 and on 16 January 2002, he reenlisted for a period of 4 years.  He was 21 years old at the time of entry and a high school graduate.  He served in Germany, Korea, and South West Asia.  He earned an ARCOM and two AAM’s, two Army Good Conduct Medals and completed a total of 6 years, 6 months, and 17 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      8 June 2005, the applicant was charged with the following offenses:

      a. having a personal and sexual relationship which compromised or appeared to
      compromise the integrity and supervisory authority of the Chain of Command, and 	created an actual or clearly predictable adverse impact on discipline, authority, morale, 	or the ability of the command to accomplish its mission (050201-050403)
      
      b. a married man, on diverse occasions, wrongfully had sexual intercourse with a 	woman not his wife (050201-050402) 
      
2.  On 14 June 2005, 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 did not submit a statement on his own behalf.  The unit commander recommended approval of a general, under honorable conditions discharge and the senior intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 30 June 2005, 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 was discharged from the Army on 9 July 2005, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service does not show any record of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

An NCOER which covers the period of November 2003 to October 2004, shows the applicant was rated as among the best and received 1/1 from the senior rater.  An NCOER which covers the period of November 2002 to October 2003; the applicant was rated fully capable and received 2/2 from the senior rater.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, copies of his evaluations, divorce decree, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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.  

2.  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.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:  

	a. Length and quality of service:  The applicant completed a total of 6 years, 6 months, and 17 days which encompasses a prior period of honorable service; and completed 3 years, 5 months, and 24 days of a 4-year enlistment, thus the preponderance of his service was honorable.

	b. The record confirms the applicant received several awards, specifically an ARCOM and 2 AAMs.

2.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4. The applicant contends the misconduct that led to his discharge was a onetime offense, which occurred while his ex-wife and he were going through divorce proceedings.  The analyst noted there are no other derogatory incidents contained in the applicant’s record.  Additionally, the analyst noted applicant had received multiple positive evaluations for his work performance.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army that receive an honorable discharge.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  
 
5.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails restoration of grade to E-5.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review		  Date:  3 July 2013          Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:		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)		AR20130002500



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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