IN THE CASE OF:	

      BOARD DATE:	23 March 2015

      CASE NUMBER:	AR20140012833
___________________________________________________________________________

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 to upgrade the characterization of his service from under other than honorable to honorable.

2.  The applicant provided no specific issues for consideration toward upgrading his discharge; however, it appears he is relying on a character reference statement rendered from his current employer, and a previous certificate of appreciation.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	25 July 2014
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	13 March 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:	A Co, 3rd Bn, 3rd Special Forces Group (Airborne) 
			Fort Bragg, NC
	f.	Current Enlistment Date/Term:	22 June 2004, Indefinite
	g.	Current Enlistment Service:	4 years, 8 months, 12 days
	h.	Total Service:	16 years, 11 months, 21 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (920324-961211) / HD
			RA (961212-981213) / HD 
			RA (981214-040621) / HD 
	k.	Highest Grade Achieved:	E-6
	l.	Military Occupational Specialty:	18B1P, Special Forces Weapons Sergeant
	m.	GT Score:	112
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Afghanistan (060801-070227), Iraq (030801-
			031001) and (030101-030601)
	q.	Decorations/Awards:	BSM; ARCOM-V; ARCOM-5; AAM-3; AGCM-5 
			NDSM; ACM; ICM-CS; AFEM; GWOTEM 
			GWOTSM; AFSM; NPDR-2; ASR; OSR-2
			NATO MDL; CIB; CAB; JMUA
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	Yes

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 24 March 1992, and reenlisted three times thereafter.  The latter reenlistment was on 22 June 2004, for an indefinite period.  He was 19 years old at the time of entry and high school graduate.  He was trained in and awarded military occupational specialty (MOS) 18B1P, Special Forces Weapons Sergeant.  He served in Germany, Bosnia/Herzegovina, Iraq, and Afghanistan.  He was awarded a BSM; an ARCOM with V Device; six additional ARCOMs; and three AAMs.  He completed 16 years, 11 months, and 22 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 15 April 2008, the applicant was charged with the following offenses:

	a.	Charge I, violation of Article 107, UCMJ, for making a false official statement (080608),
	b.	Charge II, violation of Article 134, UCMJ, three specifications as follows:

		(1)	Specification 1: for doing indecent liberties with a female under 16 years of age, not his wife (050801-060801),
		
		(2)	Specification 2: for committing an indecent act upon the body of a female under 16 years of age, not his wife, and
		
		(3)	Specification 3: for committing an indecent act upon the body of a female under 16 years of age, not his wife.

2.  On 14 January 2009, 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 did not submit a statement on his own behalf.  The unit commander and intermediate commanders recommended trial by a general court-martial.  

3.  On 29 January 2009, the GCMCA approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 13 March 2009, with a characterization of service of under other than honorable conditions.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  General Court-Martial Order Number 7, dated 3 April 2009, indicates the listed charges at the preceding paragraph 1, which were preferred and referred for trial by a general court-martial, were dismissed subsequent to the applicant’s request for discharge pursuant to Chapter 10, AR 635-200 being approved on 29 January 2009, and an issuance of an under other than honorable conditions characterization of service.
2.  Charge sheet listing the charges listed at the preceding paragraph 1 presented at the separation facts and circumstances.

3.  Four NCOERs rendered during the period under current review:

	a.	An “Annual” report covering the period 29 July 2007 and 28 July 2008.  The applicant was rated as “Among the Best” and received 1/1 from the senior rater.
	b.	An “Annual” report covering the period 29 July 2006 and 28 July 2007.  The applicant was rated as “Among the Best” and received 1/1 from the senior rater.
	c.	A “Change of Rater” report covering the period 1 November 2005 and 28 July 2005.  The applicant was rated as “Fully Capable” and received 3/2 from the senior rater.
	d.	An “Annual” report covering the period November 2003 and October 2004.  The applicant was rated as “Among the Best” and received 1/1 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a character reference statement, dated 10 November 2014 and certificate of appreciation, dated 10 November 2010.  As additional evidence: self-authored statement (work after discharge); four sworn statements as part of CID report; ADRB Records Review decision documents; separation packet; DD Form 214 for service under current review; and Record of Trial (RoT) Volume I of I, dated 25 October 2007; and RoT Volumes I of III and III of III, dated 23 April 2008, 26 June 2008, and 28 July 2008.  

POST-SERVICE ACTIVITY: 

The applicant provided none, but according to his submitted documents, it appears he is currently employed. 

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.  

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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "KFS" will be assigned a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his service was carefully considered.  However, after examining the applicant’s record of service and the 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 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 no acts of significant achievement or valor and 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 submitted evidence indicates an upgrade of his discharge would allow him to obtain better employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 

5.  Further, the submitted evidence also indicates an employment after his discharge.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that this accomplishment does not overcome the reason for discharge and characterization of service granted.  

6.  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: 23 March 2015    Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  Yes

Witness/Observer:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Attorney’s Brief (6 pages)

	b.  Letters of Recommendation (3 pages)

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:		No Change	
Change RE Code to:			No Change
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)		AR20140012833

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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