IN THE CASE OF:
BOARD DATE: 18 September 2013
CASE NUMBER: AR20130006067
___________________________________________________________________________
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 APPLICANTS REQUEST AND STATEMENT:
1. The applicant requests that his under other than honorable conditions discharge be upgraded to general, under honorable conditions.
2. The applicant states, in effect, that he wishes to join the Reserves and finish his obligation to the US Army. He would like to earn his honorable discharge and serve his country. He has been denied entrance into the Reserves due to his other than honorable (OTH) conditions discharge. He takes responsibility for everything that he did wrong, and does not want his discharged overturned due to an error in judgment by his commanders. He instead would like the opportunity to earn his discharge by completing his service in the Reserves. He has been given the run around by recruiters and most wont even talk to him due to his discharge. Many people want their discharge overturned so they may reap the benefits of the VA. He is currently volunteering his time with the Big Brother Program in order to help the youth. He will understand completely if the board denies his request for a discharge upgrade.
a. Application Receipt Date: 25 March 2013
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 15 March 2007
d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, 14-12c, JKQ, RE-3
e. Unit of assignment: C Company, 2d Battalion, 23d Infantry Regiment, 4th Brigade (SBCT), 2d Infantry Division, Fort Lewis, WA
f. Current Enlistment Date/Term: 28 October 2004, 4 years, 19 weeks
g. Current Enlistment Service: 2 years, 4 months, 18 days
h. Total Service: 2 years, 4 months, 18 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 19K10, Armor Crewman
m. GT Score: 133
n. Education: HS Graduate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: AAM, NDSM, GWOTSM, ASR, EIB
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:
The applicant enlisted in the Regular Army on 28 October 2004 for 4 years and 19 weeks. He was 19 years old at the time of his enlistment and a high school graduate. When his discharge proceeding were initiated he was serving at Fort Lewis, WA. His record documents the award of an AAM and EIB.
SEPARATION FACTS AND CIRCUMSTANCES:
1. The evidence contained in the applicants service record shows that he was the subject of a Criminal Investigation Division (CID) investigation for downloading and possessing child pornography, and failing to obey a lawful order on 15 October 2005.
2. On 18 October 2005, the Soldier was advised of his rights and submitted a sworn statement in which he admitted to knowingly downloading pornography on his government computer, but that he was unaware it was child pornography.
3. On 11 January 2006, the Soldier was counseled for destroying government property and looking at adult material on his government computer. He received an additional counseling on 12 January 2006 recommending him for an Article 15 based on his misuse of a government computer, and recommendation for a Chapter 14-12c discharge.
4. The record contains a pre-trial agreement dated 26 September 2006, in which the Soldier offered to plead guilty, in a Summary Court Martial, to wrongfully loading adult pornography and unauthorized software on his government computer. In this agreement, he waived his right to an administrative separation board for a legally-sufficient chapter separation action under AR 635-200, Chapter 14, for the charges to which he was pleading guilty. He was notified that the additional charges, for which he was not pleading guilty, i.e., downloading child pornography, could also be used as a basis for the separation action. He submitted this waiver with full knowledge that he may receive an under other than honorable conditions discharge.
5. On 15 November 2006, the Soldier pled guilty in Summary Court Martial proceedings and the punishment of reduction to E-1, forfeiture of $849 pay, and restriction for 60 days, was approved on 28 November 2006.
6. On 25 January 2007, 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 misconductcommission of a serious offense, for installing unauthorized programs on his government computer to view pornography on the Internet; and downloading pornographic material of minors on his government computer.
7. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.
8. On 29 January 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by an administrative separation board, and submitted a statement on his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The battalion and regiment commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.
9. On 28 February 2007, the Soldier submitted an additional statement addressed to the separation authority. In the statement, he asked for consideration to remain in the Army or, if separated, that he be separated with a general, under honorable conditions discharge.
10. On 1 March 2007, the General Court Martial Convening Authority directed the applicants discharge with a characterization of service of under other than honorable conditions.
11. The applicant was discharged from the Army on 15 March 2007, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (commission of a serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3.
12. The applicants record does not contain any evidence of unauthorized absences or time lost.
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:
1. Two negative counseling statements dated 11 January 2006 and 12 January 2006, for destruction of government property and looking at adult material on a government computer, recommendation for an Article 15 and separation under AR 635-200, Chapter 14-12c.
2. Several CID Reports with various dates (18 October 2005 through 11 March 2006). The reports indicate the applicant was the subject of an investigation for downloading and possessing child pornography on a government computer.
3. Summary court-martial adjudged while in Fort Lewis, WA on 15 November 2006, for wrongfully downloading pornographic images (between 050918 and 051017) and wrongfully downloading unauthorized software (between 050918 and 051017). His punishment consisted of reduction to E-1, forfeiture of $849.00 pay and restriction for 60 days
EVIDENCE SUBMITTED BY THE APPLICANT:
The applicant provided a DD Form 214 and DD Form 293.
POST-SERVICE ACTIVITY:
The applicant contends that he is a volunteer with the Big Brother Program and he has been attempting to get back into the military.
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 members 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND RECOMMENDATION:
1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants 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 that the applicants 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 applicants record of service was marred by a summary court-martial for multiple violations of the Uniform Code of Military Justice.
3. The applicant, in exchange for trial by Summary Court Martial, agreed to waive his right to an administrative separation board for a legally-sufficient chapter separation action under AR 635-200, Chapter 14, for the charges to which he was pleading guilty. In the agreement, he was informed that he may receive an under other than honorable conditions discharge.
4. The applicant contends that he is currently volunteering his time with the Big Brother Program in order to help the youth. The applicants post-service accomplishments have been noted as outlined on the application. However, in review of the applicants entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
5. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.
6. The records show the proper discharge and separation authority procedures were followed in this case.
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: 18 September 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) AR20130006067
Page 2 of 6 pages
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