IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 January 2014

      CASE NUMBER:  	AR20130011051
___________________________________________________________________________

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 under other than honorable conditions (UOTH) to general, under honorable conditions.

2.  The applicant states, in effect, he was falsely accused of maliciously doing harm to another person.  He contends his unit commander had recommended him for a general, under honorable conditions discharge before LTG F decided to give him an UOTH discharge.  He feels he was discriminated against and was never given a fair chance after the prosecuting attorney, CPT F stepped in on the case.  He states he was one signature away from clearing post when his discharge was overturned.  He contends the victim, Mr. H was rendering first aid to him when he came in contact with his blood and contracted the human immune deficiency virus (HIV) and at no time did he infect him with HIV through sexual contact.   He states during another incident, he was charged with wanton endangerment in a civilian case during the time he suffering with depression.  He would like the board to take into consideration the following:

     a.  He was a great Soldier and never intentionally tried to cause harm.

     b.  He served as an S2 Operations Assistant, Regimental Better Opportunities for Single Soldiers (BOSS) representative and treasurer while serving at Fort Knox, Kentucky on active duty.

     c.  Since his discharge, he has actively been attending school to complete his degree.

     d.  He has sought treatment for his mental and medical health. 

     e.  He is a good person and would like a second chance to prove he is a good Soldier and  person of good character.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			12 June 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				9 December 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200,
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				HHT, 1-16 Calvary Regiment, Fort Knox, KY
f. Current Enlistment Date/Term:		4 Feb 2010/2 years
g. Current Enlistment Service:		1 year, 10 months, 5 days
h. Total Service:				9 years, 4 months, 28 days
i. Time Lost:					2 days (100328-100329)
j. Previous Discharges:			DEP, 020711-030702,NA
RA, 030703-061116, HD
RA, 061117-100203, HD

k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		19D10, Cavalry Scout
m. GT Score:					96
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (050119-060118)
q. Decorations/Awards:			AAM, AGCM-2, NDSM, ICM-CS, GWOTSM, 
ASR, OSR, NPDR, CAB
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 3 July 2003 and reenlisted on 4 February 2010          for a period of 2 years.  He was 26 years old at the time of reenlistment and a high school graduate.  He served in Iraq and earned two AAMs and a Combat Action Badge (CAB).  He completed 9 years, 4 months, and 28 days of active duty service.  When discharge proceedings were initiated, he was serving at Fort Knox, Kentucky.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 5 April 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-5a(2), conviction by civil court.  Specifically for a conviction of first degree wanton endangerment by the Hardin County Circuit Court, in the Commonwealth of Kentucky.

2.  On 5 April 2011, the applicant acknowledged receipt of the notice of separation, consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement in his behalf.

3.  On 26 May 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense).  Specifically for:

     a.  On or about 12 November 2008 and 20 October 2010, wrongfully and recklessly engaged in sexual activity without disclosing his diagnosis of HIV.

     b.  On or about 12 November 2008 and 20 October 2010, wrongfully had sexual intercourse with a man, not his wife.
 
     c.  On divers occasions on or about 12 January 2006 and 20 May 2011, he violated several lawful orders from superior commissioned officers to (1) verbally notify prospective sexual partners of his HIV diagnosis prior to engaging in sexual intercourse and (2) to use condoms should he engage in sexual intercourse with a partner.  He violated those orders on numerous occasions by failing to verbally notify his sexual partners of his HIV diagnosis and failed to use condoms while engaging in sexual intercourse with his partner.

4.  After the introduction of new evidence, the unit commander notified the applicant on 
12 August 2011, of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for the above offenses and included that on 
1 February 2011, he was convicted in Hardin County Court for first degree wanton endangerment, when manifesting an extreme indifference to human life, he wantonly engaged in conduct which created a substantial danger of death or serious physical injury, by firing a handgun through the wall of his apartment into the adjoining bedroom of his neighbor.  

5.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge.

6.  On 1 September 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

7.  On 27 June 2011, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 28 June 2011, the applicant acknowledged receipt of the memorandum of notification.

8.  On 29 July 2011, the Commander, Headquarters, US Army Accessions Command and Fort Knox, Fort Knox, Kentucky, withdrew the previous referral of the applicant to an enlisted administrative separation board without prejudice as a result of the discovery of additional unfavorable information.

9.  On 15 September 2011, the applicant was again notified to appear before an administrative separation board and advised of his rights.  On 16 September 2011, the applicant acknowledged receipt of the memorandum notification.

10.  On 12 October 2011, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

11.  On 10 November 2011, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted pay grade.

12.  The applicant was separated on 9 December 2011, under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense), with a under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.

13.  The applicant's record shows he was absent without leave (AWOL) during the period 
28 March 2010 through 29 March 2010.  His mode of return to military custody is unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  MEDCOM Form 699-R (Report of Mental Status Evaluation), dated 17 November 2010, reflects the applicant possessed clear and normal thought process and was able to differentiate right from wrong.  He was diagnosed with major depressive disorder and Post Traumatic Stress Disorder (PTSD).


2.  DA Forms 5669 (Preventive Medicine Counseling Record), dated 31 January 2006, 
25 April 2007,  and 16 February 2010, reflects the applicant was diagnosed on 
12 January 2006, with an initial and confirmed positive laboratory test result for the HIV antibody.  The applicant acknowledged he understood his responsibilities and the preventive medicine measures needed to preclude transmission of HIV infections.

3.  Criminal Investigation Division (CID) Forms 94 (Agent’s Investigation Report), dated 27 October 2010 and 8 November 2010, reflects an investigation that Mr. H was infected with HIV by the applicant. 
      
4.  CID Report of Investigation, dated 22 March 2011, reflects the applicant as the subject of an investigation for aggravated assault.

5.  A memorandum from Mr. V, Infectious Disease Consultant, Department of the Army, Ireland Army Community Hospital, Fort Knox, Kentucky, dated 23 April 2010, indicated a recommendation for the applicant to remain on active duty, but provided a fairly standard 40-hour work week with no nights or overtime, not assigned a combat MOS, and is non-deployable.

6.  Hardin Circuit Court, 9th Judicial Circuit, Division II Case No 10-CR-00308, dated 
8 March 2011, reflects the applicant entered a plea of guilty on the charge of first degree wanton endangerment.  

7.  Four counseling statements dated between 31 January 2006 and 17 February 2010, detailing the applicant’s responsibilities as a result of testing positive for HIV.

8.  DA Form 3822 (Report of Mental Status Evaluation) dated 16 June 2011, indicated the applicant was diagnosed with PTSD.  It determined the applicant knew the difference between right and wrong and his symptoms were not a contributing factor in the behavior that caused his discharge.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

1.  The applicant provided the following documents in support of his application:

     a.  DD Form 293, dated 10 June 2013.

     b.  DD Form 214 (Certificate of Release or Discharge from Active Duty).

     c.  An Enlisted Record Brief (ERB), dated 6 May 2011.

     d.  A discharge separation packet under the provisions of AR 635-200, Chapter 14-5a(2), conviction by civil court, initiated on 5 April 2011.

     e.  DD Forms 256A, (Honorable Discharge Certificates), dated 16 November 2006 and 
3 February 2010. 

     f.  DA Form 1059 and US Army NCO Academy Warrior Leader Course Completion Certificate, dated 9 April 2009.

     g.  Promotion Recommendation List, dated 9 September 2008.

     h.  Additional Duty memorandum, dated 9 December 2008, reflects the applicant as Regimental BOSS Representative.

     i.  Additional Duty Appointment Order, dated 14 April 2009, reflects the applicant as Energy Conservation (Primary).

     j.  Environmental Compliance Officer Course completion certificate and identification card.

     k.  Numerous military certificates of appreciation and achievement.

     l.  Army Training Transcript, dated 14 January 2011.

     m.  A statement from Mr. H, dated 6 June 2013.  Mr. H stated he has known the applicant for several years.  In April 2010 while serving as his care provider after several major surgeries, the applicant had an arterial bleed that continuously bleed all over him while rendering first aid.  In October 2010, he found out he was HIV positive and was told he contracted HIV from the applicant.  He contended he knew the applicant was HIV positive and did not use any precautions to protect himself while rendering aid to him on the day of the arterial bleed.  He stated the act was not done in malice on the applicant’s part but was simply an accident.

     n.  Health records pertaining to the applicant. 

     o.  DA Form 2627 (Summarized Record of Proceedings under Article 15, UCMJ), dated 
12 January 2010, for on or about 11 January 2010, without authority, fail to go to at the time prescribed to his appointed place of duty and with intent to deceive, make to SGT K, an official statement “I was blocked in my parking space by another car,” or words to that effect, which statement was totally false and was known by him to be false.  The applicant was found guilty of all offenses.  His punishment consisted of seven days extra duty.

POST-SERVICE ACTIVITY: 

The applicant states he has been attending school to complete a degree program.

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.

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 of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violations of the UCMJ and a civil conviction.

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 contends he was falsely accused of maliciously doing harm to another person but provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the presumption of regularity should not be applied.  The applicant by his own statement, contained in the record, pled guilty to civilian charges for the offenses of wanton endangerment, and he did it in order to avoid the possibility of going to jail.  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be considered for discharge when convicted by a civil court, or when action is taken that is tantamount to a finding of guilty when a punitive discharge is authorized for a similar offense under the Manuals for Court Martial.  In addition, the applicant was the subject of an investigation for aggravated assault.  The record indicates that an administrative separation board, considering all aspects of his service record, the recommendation of his commanders and other witnesses, and the alleged misconduct, saw it fit to recommend a under other than honorable conditions discharge.

5.  The applicant further contends he is attending school to complete a degree.  The applicant’s post-service accomplishments have been noted as outlined on the application; however, in review of the applicant’s 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.  The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

6.  The records show the proper discharge and separation authority procedures were followed in this case.  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:  17 January 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)		AR20130011051



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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