AR20140000692

IN THE CASE OF: Mr.

BOARD DATE: 3 December 2014

CASE NUMBER: AR20140000692
___________________________________________________________________________

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 did not submit any issues of equity or propriety to be considered by the Board.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 2 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 24 August 2010
d. Reason/Authority/SPD/RE: Misconduct (Civil Conviction), AR 635-200 Chapter 14, Section II, JKB, RE-3
e. Unit of assignment: 175th Quartermaster Company, 553rd Combat Sustainment Support Battalion, Fort Hood, TX
f. Current Enlistment Date/Term: 27 December 2007, 3 years
g. Current Enlistment Service: 11 months, 6 days
h. Total Service: 2 years, 4 days
i. Lost time: 629 days
j. Previous Discharges: USMC (010615-010824)/NIF USAR (061129-071226)/NIF
k. Highest Grade Achieved: E-2
l. Military Occupational Specialty: 92S10, Shower/Laundry/Clothing
m. GT Score: 111
n. Education: HS Graduate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: NDSM, GWOTEM, ASR
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 US Marine Corps on 15 June 2001, the enlistment documents are not contained in the file. He was discharged on 24 August 2001; the characterization of service was not in the file. The applicant enlisted in the US Army Reserve on 29 November 2006, for a period of 8 years. He was 23 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 68X10, Mental Health Specialist. He was discharged on 26 December 2007; the characterization of service was not in the file. The applicant enlisted in Regular Army on 27 December 2007, for a period of 3 years. He was 23 years old at the time of entry and a high school graduate.
He was trained in and awarded military occupational specialty (MOS) 92S10, Shower/Laundry/Clothing. His record does not contain any evidence of acts of valor or meritorious achievements; he achieved the rank of PV2/E-2. He was serving at Fort Hood, TX when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 15 July 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct-(civil conviction) for being convicted of aggravated sexual assault, a 1st degree felony and sentenced to 17 years confinement in the TDJC, by the State of Texas.

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 15 July 2010, the applicant was afforded the opportunity to consult with legal counsel and waived his right to do so, 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 in his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate and senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

4. On 9 August 2010, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank.

5. The applicant was discharged from the Army on 24 August 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, Section II, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB and an RE code of 3.

6. The applicants record of service indicates 629 days of time lost for being in civil confinement from 3 December 2008 until 24 August 2010.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. State of Texas 426th District Court, Bell County document, dated 17 March 2009, indicating the applicant was required to register as a sex offender for being convicted of sexual assault.

2. State of Texas 426th District Court, Bell County document, dated 7 April 2009, indicating the applicant was convicted of aggravated sexual assault (two pages).

3. The record contains a DA Form 4187 (Personnel Action), dated 8 January 2009, showing the applicants civil confinement date.
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with the 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 his military records and the application he submitted, 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 (civil conviction), the applicant diminished the quality his service below that meriting a general, under honorable conditions or a fully honorable discharge. The applicants record of service was marred by 426th District Court documents and a DA Form 4187.
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 did not submit any issues of equity or propriety to be considered by the Board.

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

6. Therefore, the reason for narrative reason for discharge to include the RE code being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 3 December 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) AR20140000692

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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