IN THE CASE OF:  	

      BOARD DATE:  	18 May 2015

      CASE NUMBER:  	AR20150002897
___________________________________________________________________________

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 the characterization of service was too harsh based on the applicant’s length and quality of his service, his testimony, and the circumstances surrounding the discharge (i.e., the case was dismissed by the host nation (England)) 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. The Board determined the reason for discharge was proper and equitable, and voted not to change it.  This action entails restoration of grade to PFC/E-3.


      
      
      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 was unjustified.  He contends the charges against him of sexual assault in London, England were dropped by civil authorities due to lack of evidence and proven lies by the woman (accuser); however, the Army continued on with Chapter 10 processing.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 February 2014
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			27 March 2014
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, 1st Bn, 4th IN Rgt, Germany
f. Current Enlistment Date/Term:	11 August 2010, 3 years and 16 weeks
g. Current Enlistment Service:	3 years, 7 months, 17 days
h. Total Service:			3 years, 7 months, 17 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				100
n. Education:				HS Graduate
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		AAM, AGCM, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	NA
s. Performance Ratings:		NA
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 11 August 2010, for a period of 3 years and     16 weeks.  He was 20 years old at the time of entry and a high school graduate.  His record indicates he served in Germany; achieved the rank of PFC/E-3; and earned several awards to include the AAM and the AGCM.  He was serving in Germany when separation action was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:
1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, documents submitted by the applicant with his application contains a DD Form 458, Charge Sheet which indicates on       30 October 2013, the applicant was charged with committing a sexual act, in London, England, between (121231 and 130101) on Ms. M.G., by penetrating her vulva with his penis, when the said Ms. M.G., was incapable of consenting to the sexual act due to impairment by an intoxicant, and that condition was known or reasonable should have been known by the applicant.

2.  On 11 March 2014, 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, while he was requesting a discharge characterization of general, under honorable conditions, he understood he could receive an UOTHC discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did submit a statement on his own behalf.  The applicant's chain of command recommended approval of an UOTHC discharge.

3.  On 12 March 2014, 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 27 March 2014, 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 a RE code of 4. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  General Court-Martial Order Number 9, dated 9 April 2014, which indicates the applicant was charged with at or near London, England, between on or about 31 December 2012 and on or about 1 January 2013, committed a sexual act upon Ms M.G., to wit: penetrating her vulva with his penis, when the said Ms. M.G. was incapable of consenting to a sexual act due to impairment by an intoxicant, and that condition was known or reasonably should have been known by the accused.  His proceedings were terminated on 30 January 2014.  The convening authority approved the applicant's request for discharge in lieu of court-martial under the provision of Chapter 10, AR 635-200.  All rights, privileges, and property of which the applicant had been deprived by virtue of the proceedings were restored.





EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, record of trial which includes a copy of his separation packet (over a thousand pages), a recommendation for employment, and a copy of General Court-Martial Order Number 9, dated 9 April 2004.

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 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.  

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, the issues and 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 contends his discharge was unjustified.  The charges against him of sexual assault were dropped by civil authorities due to a lack of evidence and proven lies by the woman (accuser).  However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen.  In this case, the charges were dismissed because the applicant requested to be discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial and the convening authority approved that request.

5.  Furthermore, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts 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.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. 

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 the characterization of service was too harsh based on the applicant’s length and quality of his service, his testimony, and the circumstances surrounding the discharge (i.e., the case was dismissed by the host nation (England)) 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. The Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to PFC/E-3.









SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance        Date: 18 May 2015      Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  Yes

Witnesses/Observers:  None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted the following additional documents or contentions.

Board Vote:
Character Change:  4	No Change:  1
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:		No Change
Change RE Code to:			No Change
Grade Restoration to:			PFC/E-3
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)		AR20150002897



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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