IN THE CASE OF:  	
      
      BOARD DATE:  	3 July 2013

      CASE NUMBER:  	AR20130003331
___________________________________________________________________________

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 to be 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 or to fully honorable.

2.  The applicant states, in effect, that it has been over 10 years since the incident.  He has matured a lot, feels sorry for his actions, and asks for second chance.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 February 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				8 April 2005
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:				D Btry, 1st Battalion, 43d ADA Regiment								Camp Humphreys, Korea		
f. Current Enlistment Date/Term:		26 August 2003, 4 years
g. Current Enlistment Service:		1 year, 7 months, 13 days
h. Total Service:				1 year, 7 months, 13 days
i. Time Lost:					None 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		92A10, Automated Logistics Specialist
m. GT Score:					85
n. Education:					HS Graduate
o. Overseas Service:				Korea
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, KDSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 26 August 2003, for a period of 4 years.  He was 18 years old at the time and a high school graduate.  His record documents no acts of valor or significant achievement.  He served a total of 1 year, 7 months and 13 days.



SEPARATION FACTS AND CIRCUMSTANCES:

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

a. Failed to obey a lawful general regulation by possessing alcoholic beverages while under the age of 21 years (041217)

b. With intent to deceive provided a false statement about having consensual sex with PFC H (041217)

c. Rape PFC H (041217)

d. Breaking and entering the dwelling of PFC H (041217), with the intent to commit rape

e. On divers occasions (040901-041217), committed indecent assault upon PFC H, by hugging, kissing, and slapping her on the buttocks with an open hand

f.  On divers occasions (040901-041217), committed indecent assault upon PVT W, by hugging, kissing, and slapping her on the buttocks with an open hand

2.  The applicant’s request for a Chapter 10 discharge in lieu of trial by court-martial is not contained in the available record and the presumption of government regularity prevails in the discharge process.  The applicant would have been advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving this legal counsel, the applicant would have voluntarily requested discharge in lieu of trial by court-martial.

3.  On 28 March 2005, the separation authority reviewed the Chapter 10 request in lieu of trial by court-martial which was submitted by the applicant on 21 March 2005, and approved his request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

4.  On 8 April 2005, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year, 7 months and 13 days of creditable active military service.

5.  The applicant’s record does not indicate he had any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

CID Report dated 12 January 2005.  It indicates the applicant was the subject of an investigation for rape, burglary, indecent assault, and providing a false statement.



EVIDENCE SUBMITTED BY THE APPLICANT: 

None provided with the application.  

POST-SERVICE ACTIVITY: 

None provided with the application.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 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.  Although an honorable or general discharge is authorized, a discharge UOTHC 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.  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.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his discharge was carefully considered.  However, after examining the applicant’s record of service and the issues 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 several offenses punishable under the UCMJ with a punitive discharge.  Although his request for a Chapter 10 discharge is not contained in the record, it appears the applicant voluntarily requested discharge in lieu of trial by court-martial as documented by the separation authority.

3.  The applicant contends that it has been 10 years since the incident that caused his discharge from the Army and in this time he has matured a lot.  However, the record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  Moreover, the US Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the official record or as submitted by the applicant.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.  

5.  Therefore, the characterization of service and reason for the discharge being both proper and equitable, recommend the Board deny relief.

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:  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)		AR20130003331

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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