IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 June 2014

      CASE NUMBER:  	AR20130016776
___________________________________________________________________________

Board Determination and Directed Action

1.  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 that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity and as approved by the separation authority, voted to change the applicant’s reason for discharge, authority, and separation code, and directed that a new DD Form 214 be issued reflecting the following changes:

      a. block 25, separation authority changed to AR 635-200, Chapter 14, Section II
      b. block 26, separation code changed to JKB
      c. block 28, narrative reason for separation changed to Misconduct (Civil Conviction)   

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.



      
      
      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 under other than honorable conditions to honorable.

2.  The applicant states, in effect, that his discharge should be upgrade based on his 12 years of honorable service. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		9 September 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			17 June 2003
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14, Paragraph
      14-12a, JKN, RE-3
e. Unit of assignment:			HHC, 1st Bn, 64th AR Bn, Fort Stewart, GA
f. Current Enlistment Date/Term:	26 April 2001, 3 years
g. Current Enlistment Service:	2 years, 1 month, 22 days
h. Total Service:			12 years, 11 months (The DD Form 214 under review 						does not include the applicant's prior periods of 						service in the USMC and ARNG).
i. Time Lost:				715 days
j. Previous Discharges:		USMCR-880803-890122/NA									USMC-890123-940122/HD									USMCR-940123-940414/NA									ARNG-940415-981007/HD										RA-981008-010425/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	19K10, M1 Armor Crewman
m. GT Score:				125
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant's records shows he enlisted in the United States Marine Corps Reserves on or about 3 August 1988.  He served on active duty in the United States Marine Corps and later in the Army National Guard (ARNG).  On 7 October 1998 he was discharged from the ARNG pending enlistment in the Regular Army (RA).  The applicant enlisted in the RA on 8 October 1998, for a period of three years.  He was 28 years old at the time of entry and a high school graduate.  He reenlisted on 26 April 2001 for a period of three years.  He achieved the rank of SGT/E-5.  His record does not contain any evidence of acts of valor or meritorious achievements.  He was serving at Fort Stewart, GA when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 5 December 2002, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5a, AR 635-200, by reason of misconduct (civil conviction) for being convicted by civilian authorities and sentenced to serve 30 years.

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

3.  The record contains two elections of rights documents submitted by the applicant, dated    14 January 2003, whereas the applicant indicates he consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and submited a statement on his own behalf.  The second document indicates the applicant consulted with legal counsel, was advised of the impact of the discharge action, and voluntarily waived consideration of his case by an administrative separation board, contingent on his receiving a characterization of service or description of separation no less favorable than general, under honorable conditions.  The applicant submitted a statement on his own behalf.  

4.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge.

5.  On 10 March 2003, the separation authority disapproved the applicant's request for a conditional waiver.  His request for an administrative separation board and waiver of personal appearance before the board was approved.

6.  On 17 March 2003, the applicant was notified to appear before an administrative separation board and advised of his rights.  

7.  On 15 April 2003, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions.  The findings were based on the allegation in the notice of administrative separation IAW AR 635-200; Chapter 14-5 was supported by the preponderance of the evidence and warranted separation.   

8.  On 25 April 2003, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable.

9.  The applicant was discharged from the Army on 17 June 2003, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12a, AR 635-200, for misconduct, with a Separation Program Designator code (SPD) of JKN and an RE code of 3.

10.  The applicant's record shows he was confined by civilian authorities, for 715 days during the period 3 July 2001 through 17 June 2003.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A CID Report dated 21 June 2001, which indicates the applicant was the subject of investigation for enticing a child to commit a lewd act, indecent acts upon a child, and sodomy.

2.  A Court Order from the Superior Court of Liberty County, Georgia dated, 26 August 2002.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a copy of his service school academic evaluation report, dated 3 February 2000, a NCO Evaluation Report, dated 1 March 2001, a copy of his report of separation and record of service from the ARNG, and a copy of his DD Form 214 for a prior period of service

POST-SERVICE ACTIVITY:

None 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.

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, his military records, 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 his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his civil conviction which resulted in his confinement for 30 years.

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 should be upgraded based on his 12 years of good military service.  The applicant’s service accomplishments and the quality of his service prior to the incident 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 seriousness of his misconduct which resulted in his civil conviction and confinement.

5.  Additionally, notwithstanding the propriety of the applicant's discharge, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct, authority as AR 635-200, paragraph 14-12a, and SPD code of JKN.  However, the separation authority approved the discharge under the provisions of AR 635-200, AR 635-200, Section II, paragraph 14-5a, for misconduct (civil conviction).

6.  Therefore, the characterization of service being both, proper and equitable, recommend the Board deny relief.  However, recommend the Board make the following changes:  
      
a. change block 25, separation authority to AR 635-200, Chapter 14, Section II, paragraph 14-5
      b. change block 26, separation code to JKB
      c. change block 28, narrative reason for separation to Misconduct (Civil Conviction)    
      
SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  	Date:  25 June 2014          Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers:  No

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:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Civil Conviction)
Change Authority for Separation:	AR 635-200, Chapter 14, Section II, Paragraph 14-5
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code JKB

















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)		AR20130016776



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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