IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 May 2014

      CASE NUMBER:  	AR20130015192
___________________________________________________________________________

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

2.  The applicant states, in effect, that he was completely innocent and forced to take a Chapter 10.  He was accused of inappropriate contact with two Soldiers.  Those allegations were made up by two sergeants (SGTs) in order to keep their inappropriate relationships a secret.  A year later those two SGTs received FG Articles 15 and were discharged for having sexual relations with their mental health patients and privates.  The applicant contends he was nothing more than an escape goat.  Those Soldiers falsely accused him because of his leadership style.  He received no support from his new company commander, who he suspected of having inappropriate relationships with enlisted females also.  He was told by the first sergeant (1SG) not to talk or tell anyone of the incident which was a violation of his rights.  The 1SG assured him it would stay in house and he was flagged and moved to S-1.  When it came time to deploy again, he refused to go with the unit because he was schedule to transfer to Tripler 5.  The day he made his intentions known, he was formerly charge.  He believes that if he had deployed with the unit, he would have not been force to leave the Army.  He was told by the acting battalion commander that he believed that he was innocent and if and when he was found innocent, he would still be chaptered.  He asked his JAG lawyer would he be able to press charges against those Soldiers for false allegations and was told that it would be up to the company commander.  He signed the Chapter 10 under duress.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				2 February 2011
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:				C Co, 225th BSB, 25th ID, Schofield Barracks, 							HI  	
f. Current Enlistment Date/Term:		17 December 2008, 4 years	
g. Current Enlistment Service:		2 years, 1month, 16 days
h. Total Service:				4 Years, 8 months, 16 days
i. Time Lost:					None
j. Previous Discharges:			RA (060517-081216), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		68W10, Health Care Specialist
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (071203-090225)
q. Decorations/Awards:			ARCOM, AAM-2, AGCM, NDSM, ICM-w/CS, 							GWOTSM, ASR, OSR-2
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 enlisted in the Regular Army on 17 May 2006, for a period of four years.  He was 22 years old and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 68W10, Health Care Specialist.  The applicant reenlisted on 17 December 2008, for a period of four years.  The applicant was serving at Schofield Barracks, HI, when his discharge was initiated.  He was awarded an ARCOM, two AAMs, AGCM, and served a combat tour in Iraq.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  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.  

2.  The DD Form 214 indicates that on 2 February 2011, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Further, the DD Form 214 shows a Separation Code of KFS (in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

3.  The applicant’s available record does not show any record of actions under the UCMJ or unauthorized absences or time lost.

4.  On 28 January 2011, HQDA USA Garrison, Schofield Barracks, HI, Orders Number 028-0020, discharged the applicant from the Army effective 2 February 2011.

5.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 4 years, 8 months and 16 days of creditable active military service.  There is no time lost recorded on the applicant’s DD Form 214.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An unsuccessful Noncommissioned Officer Evaluation Report (NCOER), covering the period 1 April 2009 through 6 December 2009, which reflected the negative misconduct.  

2.  There are no negative counseling’s or actions under the Uniform Code of Military Justice in the available record. 




EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant submitted a DD Form 293, DD Form 214, two character reference letters, and an award recommendation for an ARCOM. 

POST-SERVICE ACTIVITY: 

None provided with the application.  

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 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 available military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  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.  This document identifies the reason and characterization of the discharge.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's contentions about being completely innocent, forced to take a Chapter 10, falsely accused of inappropriate contact with two Soldiers and having his due process being violated were carefully considered; however, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

4.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

5.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  9 May 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

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)		AR20130015192



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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