IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130006760
___________________________________________________________________________

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 an upgrade of his discharge from under other than honorable conditions to general, under honorable conditions and a change to the narrative reason for discharge.

2.  The applicant states, in effect, that he would like an upgrade of his discharge so he can possibly reenter the military.  He contends he is a combat veteran, served more than four years, was under a great deal of stress dealing with adjustment and family issues at the time of discharge, he was discharged a year after his ETS, and he had no prior disciplinary issues.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			15 September 2010
d. Reason/Authority/SPD/RE:		Misconduct (Civil Conviction), AR 635-200, Chapter						14, Sec II, JKB, RE-3
e. Unit of assignment:			418th Trans Co, BTB, 4th SB, Fort Hood, TX
f. Current Enlistment Date/Term:	2 March 2006, 3 years and 2 weeks
g. Current Enlistment Service:	1 year, 1 month, 10 days
h. Total Service:			4 years, 2 months, 15 days
i. Time Lost:				1,252 days
j. Previous Discharges:		USAR-030127-060301/NIF
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92A10, Automated Logistical Specialist
m. GT Score:				96
n. Education:				GED
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		ICM-w/CS, NDSM, GWOTSM, ASR, OSR							AFRM-w/M Device
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 United States Army Reserve (USAR) on 27 January 2003, for a period of 8 years.  On 1 March 2006, the applicant was discharged from the USAR for enlistment in the Regular Army.  The applicant enlisted in the Regular Army on 2 March 2006,            for a period of 3 years and 2 weeks.  He was 20 years old at the time of entry and had a high school equivalency (GED).  His record does not contain any evidence of acts of valor or meritorious achievements.  He completed a total of 4 years, 2 months, and 15 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 19 May 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason misconduct (civil conviction) for being convicted for sexual assault of a child by the state of Texas, on 11 September 2007, which is the Manual for Court-Martial equivalent of Article 120, aggravated sexual assault of a child, Uniform Code of Military Justice.  

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 22 June 2010, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 25 August 2010, the separation authority approved the applicant's unconditional waiver of consideration of his case by an administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 15 September 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-5, AR 635-200, for misconduct (civil conviction), with a Separation Program Designator code (SPD) of JKB and an RE code of 3. 

6.  The applicant's record of service indicates 1,252 days of time lost as a result of his punishment of ten (10) years in the institutional division, 12 April 2007 until his discharge date of 15 September 2010.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A copy of DD Form 4187 (Personnel Action), dated 12 April 2007, changing the applicant's duty status from present for duty to civilian confinement.

2.  A copy of the applicant's court document "Judgment of Conviction by Court-Waiver of Jury Trial," dated 11 September 2007.

3.  Thirty-Eight counseling statements dated between 18 January 2006 and 11 April 2007, concerning integration into unit, monthly performance, promotion eligibility, nonpayment of debt, family issues, collection of BAH, failing APFT and pending UCMJ action, pattern of misconduct, violation of Article 134 and 128, stealing a BB gun, wrongful appropriation, findings of child protective services, his responsibilities as a Soldier, husband and father, failure to obey orders and regulations, lack of motivation, non support of spouse, altercation with spouse, reading of Summarized Article 15, missing formation, failure to be at his appointed place of duty, malingering, and notification of Chapter 14-12 discharge action.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, self-authored statement, developmental counseling form's (8), copy of ERB, dated 31 August 2010, copy of civilian court documents, documents from his discharge packet signed by members of his chain of command, and a 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 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.

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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, misconduct (civil conviction).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" will be assigned an RE Code of 3.

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, 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 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 misconduct, the applicant diminished the quality his service below that meriting a general, under honorable conditions discharge.  The applicant’s record of service was marred by his civil conviction for sexual assault of a child, resulting in his civilian confinement for 10 years.

3.  The applicant provided no independent 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 also requested that his narrative reason for discharge be changed.  However, 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for misconduct (civil conviction).  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends he is a combat veteran, served more than four years, and was under a great deal of stress dealing with adjustment and family issues at the time of discharge.  The applicant’s service accomplishments and the quality of his service prior to the incidents 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 incident of misconduct or by the multiple negative counseling statements and the documented action under the Uniform Code of Military Justice.  

6.  Furthermore, the applicant had many legitimate avenues through which to obtain assistance or relief, and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

7.  The applicant contends he was discharged a year after his ETS.  However, evidence of record shows the applicant was convicted in civilian court for sexual assault of a child resulting in confinement for 10 years on 12 April 2007.  Although the applicant was not discharged until after his conviction; he was not held past his ETS, because of the lost time he accrued during the period 12 April 2007 to 15 March 2009.

8.  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.  

9.  The records show the proper discharge and separation authority procedures were followed in this case.  

10.  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:  13 November 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)		AR20130006760



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1