IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 August 2013

      CASE NUMBER:  	AR20130004836
___________________________________________________________________________

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 fully honorable.  

2.  The applicant states, in effect, that he was a victim of sexual misconduct by SFC T., who was his striker commander, platoon sergeant and rear detachment CSM.  He contends SFC T. took the government plea bargain and pleaded guilty on 30 November 2011.  His conviction gave him motive to falsify the drug test chain of custody concerning his case and his position gave him opportunity.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 March 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				20 November 2009
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:				1st Bn, 23d IN Regt, 3d Bde (SBCT), 2d IN 							Div, Fort Lewis, WA	
f. Current Enlistment Date/Term:		25 September 2007, 3 years and 18 weeks
g. Current Enlistment Service:		2 years, 1 month, 26 days
h. Total Service:				2 years, 1 month, 26 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					NIF
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
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 25 September 2007, for a period of 3 years and    18 weeks.  He was 17 years old and had a high school equivalency (GED).  He was serving at Fort Lewis, WA when his discharge was initiated.  His record documents no acts of valor or significant achievement.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    30 October 2009, the applicant was charged with the following offenses:

      a. wrongful use of marijuana between (090623 and 090723)
      
      b. wrongful use of cocaine between (090720 and 090723)
      
      c. wrongful use of methamphetamine between (090720 and 090723)
      
      d. assaulting a noncommissioned officer (090820)
      
      e. assaulting his wife (091026)
      
      f. being disrespect towards a commissioned officer (090820)
      
      g. being disrespectful in language towards a superior non-commissioned officer x 3 		    (090820)
      
2.  On 6 November 2009, 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 applicant's chain of command recommended approval of an UOTHC discharge.  

3.  On 12 November 2009, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 20 November 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and a RE code of 4. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The applicant's record does not contain any recorded actions under the UCMJ or counseling statements.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a DD Form 293, letter, dated 1 February 2013 from the Office of the Judge Advocated General, Washington, copy of a narrative timeline letter, dated 24 July 2012, letter, dated 28 October 2009 to LTC C, article, dated 20 June 2008 to include picture of applicant and Gen R.C., copy of a e-mail with contact information, copy of a subpoena to appear, and copy of his DD Form 214 for the period of service under review. 

POST-SERVICE ACTIVITY: 

None were 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 characterization was carefully considered.  However, after examining the applicant’s record of service, the issue and document 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 an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends he was a victim of sexual misconduct by his supervisor who was his striker commander, platoon sergeant and rear detachment CSM and that because of his position gave him motive and the opportunity to falsify the drug test chain of custody concerning his case.  However, a memorandum found in the applicant's discharge packet shows that the applicant had not been identified as a victim of a sexual assault in an unrestricted report filed within the last 24 months.  The memorandum appeared to have been signed between 30 October 2009 and 12 November 2009.  The applicant acknowledges this statement with his signature.

5.  Furthermore, the applicant contends his drug tests were tampered with and that his supervisor took advantage of him during a stressful situation.  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 processing of his drug tests were tampered with.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 

6.  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.

7.  Therefore, the reason and 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: 9 August 2013   	Location: Washington, DC

Did the Applicant Testify?  NA 

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:	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)		AR20130004836



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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