IN THE CASE OF:	Mr. 

      BOARD DATE:	14 May 2014

      CASE NUMBER:	AR20130013082
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the examiner’s 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 to upgrade the characterization of his service from under other than honorable to fully honorable.

2.  The applicant states, in effect, he was falsely accused of committing a crime that did not occur.  He served honorably for two terms of his enlistment.  A court-martial was attempted but was dropped. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	25 January 2013
	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:	B Trp, 1st Sqdn, 33rd Cavalry Regiment, 3BCT, 101st 
			Airborne Division (Air Assault), Fort Campbell, KY
	f.	Current Enlistment Date/Term:	4 November 2010, 6 years
	g.	Current Enlistment Service:	2 years, 2 months, 22 days
	h.	Total Service:	4 years, 3 months, 6 days 
	i.	Time Lost:	14 days
	j.	Previous Discharges:	RA (081030-101103) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	19D10, Cavalry Scout
	m.	GT Score:	100
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (100308-110128)
	q.	Decorations/Awards:	ARCOM; NDSM; ACM-CS; GWOTSM; ASR; OSR 
			NATO MDL; CAB
	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 30 October 2008, and reenlisted on 4 November 2010, for a period of 6 years.  He was 19 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 19D10, Cavalry Scout.  He served in Afghanistan.  He earned an ARCOM.  He completed 4 years, 3 months, and 6 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains two DD Forms 458, Charge Sheets, identified as an additional charge and initial charges, which indicate that:

	a.	on 3 May 2012, the applicant was charged with the following additional charge: violation of Article 112a, UCMJ, for wrongfully using cocaine (111112-111114), and 
	b.	on 21 March 2012, the applicant was charged with the following (initial) charges:
* Charge I, violation of Article 80, UCMJ, for attempting to commit sodomy by force and without consent (111112);
* Charge II, violation of Article 120, UCMJ:
			- two specifications of causing to engaging in sexual acts with power sufficient that
 the victim could not avoid or escape the sexual act on divers occasions (111112);
			- two specifications of wrongfully engaging in sexual contact without the permission of the victim (111112);
			- intentionally exposing of himself in an indecent manner (111112);
* Charge III, violation of Article 125, UCMJ, for committing sodomy by force (111112); and
* Charge IV, violation of Article 128, UCMJ, two specifications of committing sexual assault on divers occasions (111112).

The above charges were referred to trial by a general court-martial on 23 May 2012.

2.  On 27 September 2012, 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 own behalf.  The unit and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 12 December 2012, 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 25 January 2013, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service indicates 14 days of time lost for being AWOL on three separate occasions (110729-110801, 110823-110828, and 111207-111210).  There is no record available for the mode of return for each period of AWOL.  


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The aforementioned charge sheets at paragraph 1 above.

2.  A counseling statement, dated 17 December 2012, for being indebted to the Government.

3.  A General Officer Memorandum of Reprimand, dated 30 June 2011, for refusing to take a breathalyzer and driving under the influence of alcohol.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his application an abated record of trial which indicates that an Article 39(a) session was called to order pursuant to a General Court-Martial Order on 24 September 2012.  The session indicates the applicant was arraigned on the previously mentioned charges and its specification(s) and the session recessed on the same day.  The record of trial further indicates that on 27 September 2012, the applicant submitted a request for discharge in lieu of trial by court-martial, which was granted by the GCMCA on 12 December 2012.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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.  




ANALYST’S 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, 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 insufficient 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 the discharge was unjust because he was falsely accused of committing a crime that did not occur and a court-martial was attempted but was later dropped.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated.  In fact, the court-martial charges for multiple violations of the Uniform Code of Military Justice, which led to his request to be discharged in lieu of trial by court-martial diminished the quality of his service below that meriting a general or a fully honorable discharge.  The applicant’s statements alone do not overcome the government’s presumption of regularity.  Moreover, the evidence he submitted reflects that the court-martial was abated upon being granted his request to be discharged in lieu of trial by court-martial.

5.  The applicant contends that he had good service which included serving honorably for two terms of his enlistment.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused his separation 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 serious incidents of misconduct or by the multiple violations of the Uniform Code of Military Justice.  

6.  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:  14 May 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)		AR20130013082

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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