IN THE CASE OF:  	Mr.

      BOARD DATE:  	14 May 2014

      CASE NUMBER:  	AR20130014106
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to honorable or general under honorable conditions.

2.  The applicant states, in effect, that he does not believe the discharge was warranted based on the charge he was accused of committing.  He wants the board to consider his 19 years of honorable service in relation to a single isolated incident when making a decision that will continue to affect the rest of his family’s life.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			29 July 2013 
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				24 September 2009
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:				E Co, 4-227 Attack Recon Battalion, 1st Air Cav Bde, 						1st Cavalry Division, MND-Baghdad, Iraq 
f. Enlistment Date/Term:			25 January 2002, Indefinite 
g. Current Enlistment Service:		7 years, 4 months 
h. Total Service:				19 years, 7 months, 22 days
i. Time Lost:					None 
USAR/900222-900507/NA
j. Previous Discharges:			RA/900508-940407/HD											RA/940408-960807/HD											RA/960808-980219/HD											RA/980220-020124/HD	
k. Highest Grade Achieved:			E-8
l. Military Occupational Specialty:		63S10, Heavy Wheeled Vehicle Mechanic 
m. GT Score:					109
n. Education:					HS Graduate
o. Overseas Service:				Germany, SWA, Haiti
p. Combat Service:				Iraq x 3 (040228-050305), (061024-071223),								(090430-090911)
q. Decorations/Awards:			ARCOM-4, AAM-4, AGCM-5, NDSM-2, AFEM,								GWOTSM, GWOTEM, HSM, ICM-W-CS, 								NCOPDR-3, ASR, OSR-5, NATOMDL, OVSM, 								CAB
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:		
	
The record shows the applicant reenlisted in the Regular Army on 25 January 2002, for an indefinite period of service.  He was 33 years old; a high school graduate and taking courses at the North Central Institute while on active duty.  His record indicates he reenlisted on 4 occasions during his time in service.  He advanced to the grade of E-8, and he served three combat tours and received several awards and commendations during his enlistment.  He was serving in Bagdad Iraq at the time of his discharge. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 21 August 2009, court-martial charges was preferred against the applicant for violating Articles 92, 93, 107, and 134 of the Uniform Code of Military Justice (UCMJ) specifically for the following:

	a.  Wrongfully directing sexually harassing speech toward a female enlisted Soldier (090201-090501).
	b.  Maintaining a prohibited relationship with a female enlisted Soldier (090613-090808).
	c.  Wrongfully allowing a female enlisted Soldier to enter his living quarters (090612-090626).
	d.  Wrongfully entering the living quarters of a female enlisted Soldier (090703-090806).
	e.  Making offensive comments and gestures of sexual nature toward an enlisted female Soldier (090525, 090701).
	f.  Made a false official statement to a Major (090809, 090811).
	g.  Wrongfully have sexual intercourse with an enlisted female Soldier, a woman not his wife (090624-090705).

2.  The record is void of the applicant’s request for a chapter 10 discharge to include his consultation with legal counsel who would have advised him of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  However, the record does contain a legal review of the charge sheet and the allied documents, dated 4 September 2009, and the applicant’s acknowledgment of the court-martial charges referred against him.  Thus presumption of regularity should not be applied as it pertains to the applicaint consulting with legal counsel in reference to his request for discharge.       

3.  On 11 September 2009, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

4.  On 24 September 2009, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 7 years, 8 months of active duty service for the period of service under review and had a total of 19 years and 7 months and 22 days of creditable active and inactive military service.  

5.  The applicant’s record of service does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 458 (Charge Sheet), dated 21 August 2009.  The charges contained the applicant’s violations of Articles 92, 93, 107, and 134 of the Uniform Code of the UCMJ.  

2.  Allied documents pertaining to the AR 15-6 investigation of the preferred charges reflected on the DD Form 458, dated 21 August 2009. 

3.  17 successful Noncommissioned Officer Evaluation Reports (NCOERs), covering periods from 25 January 2002 through 31 March 2009.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 12 April 2013; a DD Form 214; a self-authored statement; one character statement of support; copies of several documents from the applicant’s performance record to include NCOERs, awards, commendations, course completion certificates, civilian education completions, and reenlistment documents.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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 his discharge was carefully considered.  However, after examining the applicant’s record of service, the issue 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 offenses punishable under the UCMJ with a punitive discharge.  It also shows that 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 applicant contends that the length of his honorable service outweighs his adverse actions that caused his discharge from the Army.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding 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 court-martial charges that were filed against him.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

4.  The applicant contends that other Soldiers with similar offenses were not discharged with less than an honorable discharge.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

5.  The applicant contends it was an isolated incident.  Even though the applicant claims that his offense was an isolated one, the evidence of record shows that the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct, expected of Soldiers in the Army.  Having examined all the circumstances, the applicant’s numerous incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a fully honorable or general discharge.

6.  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.  

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

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:  14 May 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130014106



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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