IN THE CASE OF:	Mr.

      BOARD DATE:  	25 October 2013

      CASE NUMBER:  	AR20130005749
___________________________________________________________________________

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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, his discharge was inequitable because it was based on one isolated incident in nine years of service with no other adverse action.  He is requesting for an upgrade because he was discharged prior to the case being resolved.  The charges against him were false.  He had no prior disciplinary action while in the military.  The current discharge is not allowing him to better himself and his family.  He is attempting to become a State law enforcement officer.  He explains the incident that led to his discharge was falsely reported by his ex-wife when he informed her he was filing for a divorce and custody of his son in August 2009.  His ex-wife and her girlfriend came up with a story stating that he had abused his stepdaughter to keep him from getting custody of his son.  He was arrested and charged with aggravated child abuse.  His chain of command believed the accusation and started the separation process.  He was discharged prior to the court completing the process.  The investigation determined that his ex-wife had lied to stop him from getting custody of his son.  All the charges were subsequently dismissed and expunged due to a false police report about an abuse.  His ex-wife had no contact with him or his son in over three and a half years, and she has made no attempt to contact his son.  Since the resolution of the incident, he was awarded full custody.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	20 March 2013 
	b.	Discharge Received:	General, Under Honorable Conditions 
	c.	Date of Discharge:	4 February 2011 
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	194th MP Co, 716th MP Bn, 101st Sustainment Bde 
			(R) (P), Fort Campbell, KY
	f.	Current Enlistment Date/Term:	2 October 2007, 4 years
	g.	Current Enlistment Service:	3 years, 4 months, 3 days 
	h.	Total Service:	9 years, 0 months, 19 days 
	i.	Time Lost:	None 
	j.	Previous Discharges:	USAR (021116-060116) / HD
			RA      (060117-071001) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	31B10, Military Police 
	m.	GT Score:	103
	n.	Education:	GED 
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (080426-090504)
	q.	Decorations/Awards:	ARCOM; ARCAM; AGCM; NDSM; NDSM; ICM-
			2CS; GOWTEM; GWOTSM; NPDR; ASR; OSR-2; 				AFRM-M; MUC; CAB; AAB
	r.	Administrative Separation Board: 	No, conditionally waived board
	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 January 2006, and reenlisted on 2 October 2007, for a period of 4 years.  He was 22 years old at the time of entry and had a high school equivalency (GED).  He served in Iraq.  He earned an ARCOM and an ARCAM.  He completed 9 years and 19 days of both active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 15 November 2010, 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 of misconduct—commission of a serious offense, for being involved in an incident of child abuse (090609-090614), and being disrespectful to an NCO (100807).

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 24 November 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  

4.  On 20 December 2010, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 4 February 2011, with a characterization of service of general, under 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.  Seventeen negative counseling statements, dated between 1 March 2008 and 5 August 2010, for the chain of command being notified of investigation of substantial/serious child abuse; disrespecting an NCO; not being recommended for promotion; superb performance, but having personal affairs issues; achievements and shortcomings; inappropriate behavior; abusing and misusing of authority; and revocation of garrison road-duty privileges.

2.  State Circuit Court Memorandum of Understanding, dated June 2009; True Bill of Indictment court documents, dated 7 December 2009; Appearance Bond, dated 8 July 2009; Order Granting Bail, dated 8 July 2009, with amendment, dated 28 July 2009; Motion to Modify Conditions of Release, dated 24 July 2009; Notice of Downgraded charge, dated 8 December 2009; Capias and associated documents, 9 and 16 December 2009; Waiver of Arraignment, dated 4 January 2010; Application for Certification of Eligibility for Diversion, dated 24 February 2010; State Criminal History, dated 24 February 2010; and Divorce Decree and its associated documents, dated 27 August 2010.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his self-authored statement, a letter, dated 27 October 2010, rendered by a law firm indicating the applicant had entered a pretrial diversion with no admission or finding of guilt or entry of a judgment in his case; three State Circuit Court agreed orders, dated 7 January 2010, 9 February 2011, and 11 July 2011; and an Order for the Expungement of Criminal Offender Record, dated 16 August 2011. 

POST-SERVICE ACTIVITY: 

The applicant stated, in effect, since his case was resolved, he obtained full custody of his son.  The applicant provided no further information on post-service activity. 

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, and the documents and issues 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 incident of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by several negative counseling statements and multiple court documents indicating child abuse, the basis for his discharge.

3.  The applicant provided insufficient 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 that he was falsely accused by his ex-wife; was arrested and charged with aggravated child abuse; and his chain of command believed the accusation and was discharged prior to the case being resolved.  However, he provided insufficient corroborating evidence demonstrating that either the command's action was erroneous or that the presumption of regularity should not be applied.  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be considered for discharge when convicted by a civil court, or when action is taken that is tantamount to a finding of guilty when a punitive discharge is authorized for a similar offense under the Manuals for Court Martial.  The record indicates that despite the recommendations of his unit commander and intermediate commander for an under other than honorable conditions discharge, the separation authority, considering all aspects of his service record and his conditional waiver request, saw it fit to approve a general, under honorable conditions discharge.  

5.  Regarding the applicant’s contention that the charges were subsequently dismissed and expunged due to false police report, this action is considered a procedural step which is part of a normal process, when an alternative forum is chosen.  In this case, the applicant by his own statement, contained in the record, and according to a court memorandum of understanding and upon application for diversion, he agreed to the terms and conditions and was granted a diversion period of two years for downgraded charges from aggravated child abuse to child abuse and neglect, and that subsequently, upon petitioning for expungement and based on an agreed order, his probation and diversion were terminated and the case was dismissed, and all his public records relating to the charges were expunged.  

6.  The applicant contends the incident that caused his discharge was the only one in his entire Army career.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  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 serious incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  The applicant’s service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incidents of misconduct or by the multiple negative counseling statements and the documented actions within the civilian court system.

7.  The applicant contends that an upgrade of his discharge will allow him to obtain better employment, because he is attempting to become a law enforcement officer.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

8.  The record does not contain any evidence of arbitrary or capricious actions by the command and it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  25 October 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)		AR20130005749

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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