IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 June 2014

      CASE NUMBER:  	AR20140006018
___________________________________________________________________________

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 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 an upgrade of his discharge from under other than honorable conditions to honorable.

2.  The applicant states, in effect, that he was unjustly discharged.  He contends he accepted a Chapter 10 discharge because he was serving under an aggressive command and knew he was not going to receive a fair trial at court-martial.  He contends he served the Army well; always accepted leadership positions and instructor jobs, and was always rated among the best on his NCOER's.  Since his discharge, he has always worked, voted, volunteered, coached little league teams, and is a single parent of two boys.  He desires to be seen at the VA for his PTSD diagnosis and join veteran organizations.  He contends he had never gotten into any trouble or even a negative counseling in his career, so when his unit said no stateside trial, no change of lawyer who believed him, and a Article 32 hearing that was going to start three days after he was charged he panicked.  He was offered a Chapter 10 and after talking to his wife he accepted it because he didn't want to risk confinement for adultery especially knowing he didn't do it. He believes he was railroaded.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		2 April 2014
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			16 August 2005
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:			HHS, STB, 3rd ID, Fort Stewart, GA
f. Current Enlistment Date/Term:	15 February 2002, 4 years
g. Current Enlistment Service:	3 years, 1 month
h. Total Service:			12 years, 11 months, 7 days
i. Time Lost:				None 
j. Previous Discharges:		RA-920622-950403/HD											RA-950404-970701/HD											RA-970702-990831/HD											RA-990901-020214/HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	88M10, Motor Transportation Operator
m. GT Score:				107
n. Education:				HS Graduate
o. Overseas Service:			Germany, Southwest Asia
p. Combat Service:			Southwest Asia (950517-951003) Kuwait/Iraq, 								(030214-040229 and 050707-050808)
q. Decorations/Awards:		ARCOM, AAM-7, PUC, AGCM-4, NDSM-2, 								GWOTEM, GWOTSM, SWASM-w/BS, HSM, ICM, 							NPDR-2, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			Yes, 3 September 2010
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 10 September 1992, for a period of 3 years.  He was 19 years old at the time of entry and a high school graduate.  On 4 April 1995, 2 July 1997, and 1 September 1999 he reenlisted for periods of 3 years.  On 15 February 2002, he reenlisted for 4 years.  His record indicates he served in Germany and Kuwait/Iraq; achieved the rank of SSG/E-6, and earned several awards to include an ARCOM, seven AAMs, the PUC, and four AGCMs.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      22 May 2005, the applicant was charged with the following offenses:

a. having an inappropriate relationship with PV2 K.A.G between (041027 and 041110) and PFC M.D.C. between (050519 and 050705), Soldiers of a different rank, 

b. being cruel towards PV2 K.A.G. by exposing his penis to her and asking her for oral sex during a TA-50 layout (041027) and having her watch a pornographic video (041110),

c. committing sodomy with PV2 K.A.G., (041027 and 041110),

d. wrongfully having sexual intercourse with PV2 K.A.G. (041027 and 041110) and PFC M.D.C., on divers occasion from (050519 and 0507050), women not his wife,

e. indecent assault upon PV2 K.A.G., by grabbing her hands and pulling her up to a standing position next to his exposed genitals with intent to gratify his sexual desires (051027) and grabbing her head and pulling it towards his penis with intent to gratify his sexual desires (041110),

f. in a hostile fire pay zone for the purpose of avoiding his service as an enlisted person feign a drug overdose (050717).




2.  On 23 July 2005, 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 submitted a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an UOTHC discharge.  

3.  On 24 July 2005, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 16 August 2005, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Memorandum, dated 20 December 2004, pertaining to a legal review of an informal AR 15-6 Investigation (Allegations of Fraternization).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application.

POST-SERVICE ACTIVITY: 

None were 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 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 characterization was carefully considered.  However, after examining the applicant’s record of service, the issues and document 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 several acts of significant achievement and valor; however, these accomplishments 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’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings to include his four prior periods of honorable service resulting in nearly 13 years of service was 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 incidents of misconduct.

5.  The applicant contends he was unjustly discharge.  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 was unjustly discharged.  In fact, the applicant had the option of making a statement on his own behalf and to going to court-martial; however, the applicant chose to accept a Chapter 10, in lieu of trial by court-martial.   

6.  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.

7.  The applicant also contends he has been diagnosed for PTSD.  However, the service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.

8.  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:  Personal Appearance      Date: 12 June 2014       Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  None

Witnesses/Observers:  No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a. Letter from ex-spouse – 1 page

2.  The applicant presented no additional contentions.

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

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)		AR20140006018



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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