IN THE CASE OF:	Mr. 

      BOARD DATE:  	13 March 2014

      CASE NUMBER:  	AR20130017612
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on his testimony and the circumstances surrounding the discharge that held him pass his ETS date, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-4/SPC.




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

2.  The applicant states, in effect, his discharge is inequitable because it was based on a single episode with no substantial evidence.  Copies of cell phone records were never obtained to substantiate that sexually charged text messages were ever made.  He was also threatened with his juvenile history so that he would make admissions in his statement.  However, the threat of exposing his juvenile record is not documented in the transcript between him and the special agent and him, although difficult with the recording equipment was mentioned to him.  He also requests the characterization of his discharge changed so he can be paid for any saved leave he was owed.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	23 September 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	1 March 2013
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	Home Detachment Company, 1st Battalion, 64th 
			Armor Regiment, 2BCT, 3rd ID, Fort Stewart, GA
	f.	Current Enlistment Date/Term:	8 September 2009, 3 years, 19 weeks (extension NIF)
	g.	Current Enlistment Service:	3 years, 5 months, 24 days
	h.	Total Service:	3 years, 5 months, 24 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	100
	n.	Education:	HS Graduate
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; KDSM; ASR; OSR
	r.	Administrative Separation Board: 	No, waived
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 8 September 2009, for a period of 3 years and 19 weeks.  On 14 January 2013, the applicant’s enlistment was involuntarily extended pending UCMJ with a new ETS date of 22 February 2013.  He was 19 years old at the time of entry and a high school graduate.  He served in Korea.  His record documents no acts of valor or significant achievement.  He completed 3 years, 5 months, and 24 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 25 January 2013, 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—commission of a serious offense, for committing sexual contact by causing bodily harm (120629-120714), and intentionally exposing his genitalia (120629-120714), for which he received a Summary Court Martial.

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 

3.  On 25 January 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board pursuant to a pretrial agreement, dated 26 November 2013, and did not submit a statement on his behalf.  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.  

4.  On 14 February 2013, the General Court-Martial Convening Authority approved the waiver request, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was discharged from the Army on 1 March 2013, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3.  The applicant was discharged to the lowest enlisted grade, PV1/E-1.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DA Form 4430, DA Report of Result of Trial, dated 5 February 2013, reports that the applicant was found guilty of a charge with two specifications for violation of Article 120, UCMJ, on 5 February 2013, by a Summary Court-Martial.  His sentence consisted of forfeiture of $1,010 for one month and reduction to Private (E-1).  

2.  Pretrial Agreement, dated 26 November 2012, indicates the applicant offered to plead guilty to two specification of the charge, and in pertinent part, waived his right to any administrative separation board initiated against him and understanding that he may receive an under other than honorable characterization of service as a result of his waiver.  The offer to plead guilty was accepted by the Summary Court-Martial Convening Authority on 26 December 2012.

3.  DD Form 458, Charge Sheet, indicates the applicant was charged with committing sexual assault and indecent exposure under Article 120, UCMJ, and the charge was preferred on 18 October 2012. 

4.  Memorandum, dated 14 January 2013, subject: Request Extension of ETS for Separation for [the applicant], indicates the request was approved to extend the applicant’s enlistment for pending UCMJ action through 22 February 2013.

5.  One negative counseling statement, dated 9 January 2013, for being processed for involuntary separation.

6.  CID Report, dated 16 July 2012, indicates the applicant was the subject of an investigation for abusive sexual contact, rape, sexual assault. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for the service under current review and a copy of his separation file. 

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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 and to change the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his 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 serious incidents of misconduct, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by a summary court-martial for violation of the Uniform Code of Military Justice.

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’s contention that his discharge is inequitable because it was based on a single episode with no substantial evidence and that the threat of exposing his juvenile record so that he would make admissions was carefully considered.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  In fact, the applicant’s offer to plead guilty and his subsequent conviction by a summary court-martial justify the serious incidents of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  

5.  Furthermore, regarding the applicant contention that the incident that caused his discharge was based on a single episode.  Although a single incident or episode, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's serious incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

6.  The applicant also requested to change the narrative reason for his 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.  

7.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, 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:  Personal Appearance     Date: 13 March 2013     Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: None

Witnesses/Observers:  Yes - spouse

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

2.  In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  3	No Change:  2
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:	General, Under Honorable Conditions
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		E-4/SPC
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)		AR20130017612

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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