IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 February 2014

      CASE NUMBER:  	AR20130009586
___________________________________________________________________________

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, that an upgrade of his discharge will help him to continue to serve and progress through the ranks as a government employment.  He believes his 11 years of quality and outstanding service outweighs his one mistake.  He states his misconduct was the result of being in a vulnerable state of mind after his grandfather died.  After his grandfather’s death he had issues sleeping at night.  He states since his discharge he has gotten married, gained custody of his daughter, continues to go to school and has obtained a Bachelor of Science degree in Business/Management, a Master of Business Administration Human Resources Management Degree, and a Master of Science Degree in Industrial Organizational Psychology.  He is in his third year of obtaining a PhD in Industrial Organizational Psychology and is in government employment as a HR Specialist Intern.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			20 May 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				13 May 2005
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				PCF Spec Proc Co, Fort Knox, KY
f. Current Enlistment Date/Term:		18 October 1996, 3 years
g. Current Enlistment Service:		8 years, 1 month, 10 days
h. Total Service:				13 years, 10 months, 4 days
i. Time Lost:					168 days 
j. Previous Discharges:			USAR-910123-930920/NIF										RA-930921-961017/HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		71L10, Administrative Specialist
m. GT Score:					99
n. Education:					HS Graduate
o. Overseas Service:				Korea, Germany, Kosovo
p. Combat Service:				Kosovo (000429-000717)
q. Decorations/Awards:			ARCOM-3, AAM-3, AGCM-2, KDSM, NDSM-2	 							KCM-w/BS, AFSM, NPDR, ASR, OSR 
							NATOMDL
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:

The applicant enlisted in the United States Reserve (USAR) on 23 January 1991, for a period of 8 years.  He was 17 years at the time of entry and a high school graduate.  After 2 years,           7 months, and 28 days, he was discharged from the USAR for enlistment in the Regular Army.  He enlisted in the Regular Army on 21 September 1993, for a period of 3 years and reenlisted on 18 October 1996, for a period of 3 years.  He also extended his enlistment 17 months giving him an ETS date of 17 March 2001.  The record is void of any other reenlistment contracts.  His record indicates he served in Korea, Germany, and Kosovo; achieved the rank of SGT/E-5, and earned several awards to include three ARCOMs, two AAMs, and two AGCMs.  He completed a total of 13 years, 10 months, and 4 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 9 January 2001, the applicant was found guilty by a general court martial special court-martial of the following charge:  On or about 12 November 2000, knowingly and wrongfully possessed matter which contained three or more images of child pornography.  He was sentenced to a bad conduct discharge, confinement for 7 months, and reduction to the grade of E-1.

2.  On 23 May 2002, the convening authority approved the sentence except for the bad-conduct discharge.

3.  On 7 January 2005, the US army Court of Criminal Appeals set aside the finding of guilty and the sentence and a rehearing was authorized.  Having been designated as the convening authority to take action in this case and having considered the advice of the Staff Judge Advocate, a rehearing was ordered; however, the order for the rehearing was withdrawn because the applicant requested for a discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200.

4.   On 10 February 2005, 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 submitted a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an UOTHC discharge.  

5.  On 25 March 2005, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 



6.  The applicant was discharged from the Army on 13 May 2005, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

7.  The applicant’s record of service indicates 168 days of time lost for military confinement from 9 January 2000 until his release date on 25 June 2002.  The DD Form 214 under review also indicates 1054 days of excess leave (020625-050513).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  General Court-Martial Order 7, dated 23 May 2002, adjudged on 9 January 2002, which shows the applicant, was found guilty of wrongful possession of child pornography on or about 12 November 2001.  His punishment consisted of a Bad Conduct Discharge, confinement for 7 months, and reduction to the grade of E-1.

2.  General Court-Martial Order 59, dated 12 May 2005, set aside the finding of guilty and the sentence and a rehearing was authorized.  Having been designated as the convening authority to take action in this case and having considered the advice of the Staff Judge Advocate, a rehearing was ordered; however, the order for the rehearing was withdraw because the applicant requested for a discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 17 May 2013, and a copy of his official academic transcript.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, that since his discharge he obtained an Associate’s degree in Business Administration, gained custody of his daughter who is living with him and his wife; continues to attend school and has obtained a Bachelor of Science Degree in Business/Management, a Master of Business Administration/Human Resources Management Degree, and a Master of Science Degree in Industrial/Organizational Psychology. He is in his third year of obtaining a PhD in Industrial/Organizational Psychology. He is a current government service employee working as a HR Specialist.

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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization 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 several acts of significant achievement and valor; however, these accomplishments 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’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings to include his two deployments and his over eleven years of service 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.  

5.  The applicant contends the incident that caused his discharge was his only mistake 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 incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  The applicant also contends an upgrade of his discharge will help his family and help him continue to serve and progress through the ranks as a government civilian employee.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

7.  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.

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

9.  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:  28 February 2014     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)		AR20130009586



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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