AR20140000499

IN THE CASE OF: Mr.

BOARD DATE: 31 October 2014

CASE NUMBER: AR20140000499
___________________________________________________________________________

Board Determination and Directed Action

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 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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests an upgrade of his discharge from under other than honorable conditions to general, under honorable conditions or honorable.

2. The applicant states, in effect, his discharge was based on a single event not his entire career. He has not been in any other trouble.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 23 December 2013
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 9 June 2000
d. Reason/Authority/SPD/RE: Misconduct, AR 635-200, Chapter 14, Paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: C Co, 305th Military Intelligence Battalion, 11th Military Intelligence Brigade, Fort Huachuca, AZ
f. Current Enlistment Date/Term: 15 September 1999, 3 years
g. Current Enlistment Service: 8 months, 25 days
h. Total Service: 7 years, 9 months, 2 days
i. Lost time: None
j. Previous Discharges: RA (920908-950209)/GD USARCG (950210-970526)/NA RA (970527-990914)/HD
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 123
n. Education: HS Graduate
o. Overseas Service: AMEA-Sinai/Prior Service
p. Combat Service: None
q. Decorations/Awards: AAM, NDSM, ASR, MFOM
r. Administrative Separation Board: No
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 1992, for a period of 3 years. He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. He discharged on 9 February 1995, with a general, under honorable conditions discharge. On 10 February 1995, he was transferred to the USAR Control Group until 26 May 1997. On 27 May 1997, he reenlisted for a period of 3 years and he was 23 years old at the time. His last enlistment on 15 September 1999 was for 3 years and he was 26 years old.
His record does not contain any evidence of acts of valor or meritorious achievements; and he achieved the rank of SPC/E-4. He was serving at Fort Huachuca, AZ when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 26 April 2000, 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. Specifically for the following offenses:

a. being arrested by the El Paso Police for sexually assaulting a minor (000305),

b. admitting to sexual intercourse, and indeed had carnal knowledge and performing sodomy with a child under the age of 16,

c. being counseled on numerous occasions for violating command policy by having a female living in his room,

d. being AWOL and failing to follow lawful orders, and

e. failing to follow lawful orders.

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. On 28 April 2000, 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 contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and submitted a statement on his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. The senior commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

4. On 17 May 2000, the separation approving authority disapproved the applicants conditional waiver request, and referred his case to the standing administrative separation board.

5. On 25 May 2000, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, and did not submit a statement on his own behalf.

6. The separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions; however, this document is unsigned.

7. The applicants service record does not contain any evidence of unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ).

8. The DD Form 214 shows the applicant was discharged from the Army on 9 June 2000, 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, with a Separation Program Designator code (SPD) of JKQ and an RE code of 3.

9. On 7 June 2000, DA, US Army Intelligence Center and Fort Huachuca, Fort Huachuca, AZ, Orders Number 159-0104, discharged the applicant from the Army, effective 9 June 2000.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. The applicant received four negative counseling statements, dated between 20 March 2000 and 13 April 2000, being placed in the weight control program, having a female living in his barracks room, being restricted to post, disobeying a direct order, and failing to report.

2. El Paso Police Department document (four pages), dated 3 March 2000, indicating the applicant was arrested for sexually assaulting a minor.

3. A Military Police Report (five pages), dated 14 March 2000, indicating the applicant was arrested off post for sexual assault on a child.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with his 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 members 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 Soldiers separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants 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 applicants 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 applicants record of service was marred by four negative counseling statements, an El Paso Police document, and a military police report.

3. The applicant provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that his service mitigated the misconduct or poor duty performance.

4. The applicant contends his discharge was based on a single event not his entire career. Although a single incident, 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 of service. The applicant’s incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.

5. The applicant additionally contends he has not been in any other trouble. The applicant is to be commended for his effort. However; this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.

6. The records show the proper discharge and separation authority procedures were followed in this case.

7. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 31 October 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

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) AR20140000499

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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