IN THE CASE OF:	Mr.

      BOARD DATE:  	9 October 2013

      CASE NUMBER:  	AR20130006143
___________________________________________________________________________

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 under other than honorable to fully honorable, and to change the narrative reason for his discharge.

2.  The applicant states, in effect, his request is based on not receiving any UCMJ punishments or reprimands while serving in the Army.  He made a big misjudgment when he walked one of the ladies to her home from his house party, and the following day, she claimed she was raped.  During the Article 32 hearing, the investigating officer recommended an Article 15 punishment, but the case was still referred to trial by court martial.  He feels he should still be serving in the military if the disposition was in accordance with the investigating officer’s recommendation. The incident was a misjudgment he wishes he could change.  All the information is in his files.  He hopes his discharge is changed including the separation code. 
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	25 March 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	30 June 2008 
	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:	503rd Maintenance Company, XVIII Airborne Corps, 
			Fort Bragg, NC
	f.	Current Enlistment Date/Term:	3 December 2005, 5 years
	g.	Current Enlistment Service:	2 years, 6 months, 27 days 
	h.	Total Service:	4 years, 8 months, 29 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (031002-051202) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	45B2P, Small Arms/Artillery Repairer
	m.	GT Score:	90
	n.	Education:	14 years
	o.	Overseas Service:	SWA 
	p.	Combat Service:	Iraq (051011-061001)
	q.	Decorations/Awards:	AAM-2; AGCM; NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None 
	t.	Counseling Statements:	NIF 
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 2 October 2003, and reenlisted on 3 December 2005, for a period of 5 years.  He was 28 years old at the time of entry and had an accumulative of 62 hours of college.  He served in Iraq.  He earned two AAM awards and completed 4 years, 8 months, and 29 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 1 February 2008, the applicant was charged with the following offenses:

      b.  two specifications of aggravated sexual assault (071208) 
      c.  forcible sodomy (071208)

2.  On 20 May 2008, 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 and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 18 June 2008, 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 30 June 2008, 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:

1.  Separation file that includes DD Form 458, Charge Sheet, indicates charges were preferred on 1 February 2008.

2.  DA Form 1059, Service School Academic Evaluation Report, dated 5 April 2007, indicates the applicant completed the Warrior Leader Course and achieved the course. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence.

POST-SERVICE ACTIVITY: 

The applicant provided none. 


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.  

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization and a change to the narrative reason for his separation 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 for the good of the service 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 that documents his achievements was considered; however, it was determined that it does 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.  His contention that he served without any adverse action prior to the incident that led to his discharge was 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.

4.  The applicant contends the offenses that led to his discharge should have been processed by punishment under Article 15.  However, the service record indicates the applicant committed discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s serious incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline, and the offenses were punishable under the UCMJ with a punitive discharge. 

5.  Regarding the applicant’s request for a change in the reason for the discharge, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The regulation further stipulates that no deviation is authorized.  

6.  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 October 2013        Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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:	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)		AR20130006143

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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