IN THE CASE OF:  	

      BOARD DATE:  	9 October 2013

      CASE NUMBER:  	AR20130007338
___________________________________________________________________________

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.

2.  The applicant states, in effect, if the charges and specifications were dismissed, it is improper and inequitable to be discharged with an under other than conditions discharge.  He had no other choice but to accept the Chapter 10.  He desires to serve in the Army again.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			7 January 2011
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:			HHC, U.S. Army Medical Department Activity 							Fort George G. Meade, MD
f. Current Enlistment Date/Term:	29 October 2003, 3 years/the document which 							extended his expiration of term of service beyond 						28 October 2006 is not contained in the available 						record; however, the Enlisted Record Brief (ERB) 						shows his ETS as 26 July 2012
g. Current Enlistment Service:	7 years, 2 months, 9 days
h. Total Service:			15 years, 2 months, 9 days/block 12e of the DD Form 						214 total prior inactive service, is incorrect and should 					read 8 years
i. Time Lost:				None
j. Previous Discharges:		USAR-(930625-931027)/NA									ADT-(931028-940511)/HD										USAR-(940512-981214)/NA									USARCG-(981215-010624)/NA
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	68D10, Operating Room Specialist
m. GT Score:				112
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		AAM, AGCM-2, NDSM, GWOTSM, KDSM, ASR-2 						OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No


SUMMARY OF SERVICE:

The applicant enlisted in the U.S. Army Reserve on 25 June 1993 for 8 years.  He was 18 years old at the time of entry and a high school graduate.  He was initially trained in and awarded military occupational specialty (MOS) 91D10, Operating Room Specialist.  He served a tour in Korea and the record does not contain an order discharging him from the US Army Reserve.  The applicant enlisted in the Regular Army 29 October 2003, for a period of 3 years and he was 29 years old at the time of entry and a HS Graduate.  The document which extended his expiration of term of service beyond 28 October 2006 is not contained in the available record; however, the Enlisted Record Brief (ERB) shows his ETS as 26 July 2012.  His record also shows he had no combat service, but earned several awards including an AAM, AGCM-2 and he achieved the rank of SPC/E-4.  He was serving at Fort Meade, MD when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      20 May 2010, the applicant was charged with engaging in indecent conduct in the physical presence of CT, a female under 16 years of age, by lifting up the front of her pants and observing her genitalia, with the intent to gratify his sexual desire between (100124-100206).

2.  On 20 December 2010, 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 behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 20 December 2010, 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 7 January 2011, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10,             AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

5.  The applicant’s record of service does not contain any actions under the Uniform Code of Military Justice (UCMJ) or negative counseling statements.

6.  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.  The record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 22 November 2008 for the Warrior Leader Course (WLC).

2.  The record also contains a CID Report of Investigation, dated 1 April 2010, which indicated the applicant was under investigation for indecent liberty with a child under the age of 16 years old.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, self-authored statement, two pages, and General Court-Martial Order number 3, two pages. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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.  Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions 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.  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 his characterization of service was carefully considered.  However, after examining the applicant’s record of service, the issues and documents 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 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 if the charges and specifications were dismissed, it is improper and inequitable to be discharged with an under other than conditions discharge.  However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen.  In this case, the charges were dismissed because the applicant requested to be discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial and the convening authority approved that request.

5.  The applicant further contends he had no other choice but to accept the Chapter 10.  The record shows the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10 and indicated he understood he could receive an under other than honorable conditions discharge.

6.  Further, 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.  The applicant desires to serve in the Army again.  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 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

8.  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: 9 October 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)		AR20130007338



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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