IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 January 2014

      CASE NUMBER:  	AR20130011970
___________________________________________________________________________

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 general, under honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, his discharge is improper because it was based on a civilian accusation that was proven false and was not based on his military conduct.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 June 2013
b. Discharge received:			General, Under Honorable Conditions
c. Date of Discharge:			19 December 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			B Co, 88th BSB, Fort Polk, LA
f. Current Enlistment Date/Term:  	19 November 2010, 4 years
g. Current Enlistment Service:  	1 year, 1 month, 1 day
h. Total Service:			3 years, 8 months, 1 day
i. Time Lost:				24 days
j. Previous Discharges:		RA-080325-101118/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	94F10, Computer/Detection Systems Repairer
m. GT Score:				109
n. Education:				1 year college
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM
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 Regular Army on 25 March 2008, for a period of 4 years.  He was 40 years old at the time of entry and had one year of college.  On 19 November 2010, he reenlisted for a period of 4 years.  His record indicates he achieved the rank of SPC/E-4 and received several awards to include the AAM.  He was serving at Fort Polk, LA when his separation was initiated.  He completed 3 years, 8 months, and 1 day of total military service.






SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 November 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense), for wrongfully engaging in sexual contacts (101227), to wit; touched his step-daughter (child under 16 years of age) on her buttocks and vagina through her clothing and such sexual contact was without legal justification or lawful authorization and without the permission of S. S. E.

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

3.  On 1 December 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  The separation authority's approval memorandum directing the applicant’s discharge was not found in the record.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  

5.  The DD Form 214 indicates that on 19 December 2011, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.  

6.  The applicant’s record indicates 24 days of time lost from 26 November 2011 to                 19 December 2011; the reason for the time lost was not found in the record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An CID Report dated 4 January 2011, that indicates the applicant was the subject of an investigation for aggravated sexual abuse of a child (under the age of 16).

2.  An MP Desk Blotter, dated 2 December 2011, that indicates the applicant was the subject of an investigation for rape of a child by force, sodomy.  The blotter also indicated previous offenses of aggravated sexual assault of a child by force (110107) and aggravated sexual abuse of a child (under the age of 16) (110110).

3.  Several counseling statements dated between 5 January 2009 and 1 January 2010, concerning his monthly performance which was noted overall as being outstanding. 


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a certificate of disposition from the Harris County District Clerk, Houston, TX, and court documents from the Superior Court of Washington for Pierce County.

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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 stated misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by the incident of misconduct.

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 his discharge is improper because it was based on a civilian accusation that was proven false and was not based on his military conduct.  The applicant's contentions was noted as stated in the court document submitted with his application indicating his case was dismissed based on the victim in the case is now an adult and lives in Florida.  After the investigation, the victim and her sister immediately recanted and this information was provided to the defense.  The victim did a signed, notarized recant letter.

5.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities.  Further evidence shows the applicant did originally confess. 

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

7.  The applicant also requested a change in the narrative reason for the discharge.  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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.

8.  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)		AR20130011970



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1