AR20140001029

IN THE CASE OF: Mr.

BOARD DATE: 10 December 2014

CASE NUMBER: AR20140001029
___________________________________________________________________________

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

2. The applicant states, in effect, he was not charged with any violations, or violated any articles, and he was talked into changing his sworn statement from No to I dont remember, and that was the only thing the prosecution had against him. His rank was taken for a dance in which nothing happened.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 10 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 13 May 2013
d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 636-200
Chapter 10, KFS, RE-4
e. Unit of assignment: 348th QM Co, 194th Combat Sustainment Spt Bn
501st Sustainment Bde, Camp Humphreys, Korea
f. Current Enlistment Date/Term: 20 April 2012, 6 years
g. Current Enlistment Service: 1 year, 24 days
h. Total Service: 11 years, 6 months, 17 days
i. Time Lost: None
j. Previous Discharges: RA (020708-090311) / HD
RA (090312-120419) / HD
k. Highest Grade Achieved: E-6
l. Military Occupational Specialty: 92A10, Automated Logistical Specialist
m. GT Score: 113
n. Education: Bachelors Degree
o. Overseas Service: Egypt, SWA, Korea
p. Combat Service: Iraq (040301-050305)
q. Decorations/Awards: ARCOM-2; AAM-4; AGCM-3; NDSM; GWOTEM
GWOTSM; KDSM; ASR; OSR-3; MNFOM-2
r. Administrative Separation Board: No
s. Performance Ratings: Yes
t. Counseling Statements: No
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 8 July 2002, and reenlisted twice thereafter. The latter reenlistment was on 20 April 2012, for a period of 6 years. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist. He served in Egypt, Iraq, and Korea. He earned two ARCOM and four AAM awards. He completed 11 years, 6 months, and 17 days of active duty.

SEPARATION FACTS AND CIRCUMSTANCES:

1. Although the applicants record is void of the DD Form 458, Charge Sheet, the evidence of record indicates the following charges were preferred on 12 April 2013, for trial by a court-martial to which the applicant responded with a request for discharge under Chapter 10, AR 635-200, in lieu of trial by court-martial:

a. violation of Article 92, UCMJ, for violating a general regulation or policy, AR 600-20, Army Command Policy (130217), for an inappropriate relationship with a junior enlisted Soldier;
b. violation of Article 107, UCMJ, for making a false official statement on five occasions (130313);
c. violation of Article 120, UCMJ, for abusive sexual contact (130217); and
d. violation of Article 128, UCMJ, for committing an assault consummated by a battery on two occasions (130217).

2. On 16 April 2013, upon the referral of the above listed charges, 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 (UOTHC) discharge and that the discharge would have a significant effect on eligibility for veterans benefits. The applicant submitted a statement on his own behalf (NIF). The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.

3. On 6 May 2013, the separation authority 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 May 2013, with a characterization of service of under other than honorable conditions.

5. The applicants record of service does not show any record of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Memorandum for the GCMCA, dated 1 May 2013, subject: Request for Discharge in Lieu of Trial by Court-Martial for [the applicant], rendered by the servicing Staff Judge Advocate (SJA), provides its purpose; a discussion listing the charges; a background that the charges were preferred against the applicant on 12 April 2013, and that the applicant submitted a request for discharge in lieu of trial by court-martial; the chain of commands recommendations; and the SJAs recommendation.

2. There are no negative counseling statements or disciplinary actions under the UCMJ.

3. Two NCOERs rendered during the period of service under current review, as follows:

a. A Relief for Cause report for period 1 June 2012 through 6 May 2013, which indicates the applicant was evaluated as Marginal and the senior rater evaluated his overall performance and potential for promotion as 5/4.
b. An Annual report for period 1 June 2011 through 31 May 2012, which indicates the applicant was evaluated as Fully Capable and the senior rater evaluated his overall performance and potential for promotion as 2/1.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review and memorandum for CID, dated 4 April 2013, subject: Legal Opine, rendered by a trial counsel.

POST-SERVICE ACTIVITY:

The applicant provided none.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter10 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 applicants request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicants record of service, and 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. Although his record documents acts of significant achievement or valor, they did not support the issuance of an honorable or a general discharge by the separation authority and they do not support an upgrade to an honorable or a general discharge at this late date.

4. The applicant contentions of not being charged with any violations, nor violating any Articles under the UCMJ; being talked into changing his sworn statement from No to I dont remember; and his rank being taken for a dance in which nothing happened, were carefully considered. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated. The applicants statements alone do not overcome the governments presumption of regularity and no additional corroborating and supporting documentation or sufficient evidence has been provided with the request for an upgrade of the discharge.

5. In view of the above, 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.

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: Records Review Date: 10 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) AR20140001029

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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