AR20140003161

IN THE CASE OF: Mr.

BOARD DATE: 23 January 2015

CASE NUMBER: AR20140003161
___________________________________________________________________________

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 under other than honorable conditions discharge characterization to fully honorable or general, under honorable conditions.

2. The applicant states, in effect, his discharge is not correct because he served honorably for six years and three months. He states, that this was his first civilian conviction. He has been serving his probation through the State of Colorado and has not committed any new crimes since his conviction.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 14 February 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 29 April 2011
d. Reason/Authority/SPD/RE Code: Misconduct (Civil Conviction), AR 635-200,
Chapter 14, Section II, JKB, RE-4
e. Unit of assignment: 569th Engineer Company, Fort Cason, CO
f. Current Enlistment Date/Term: 3 February 2007/NIF
g. Current Enlistment Service: 4 years, 2 months, 27 days
h. Total Service: 6 years, 7 months, 17 days
i. Time Lost: 211 days
j. Previous Discharges: DEP, 040913-041006, NA
RA, 041007-070202, HD
k. Highest Grade Achieved: E-5
l. Military Occupational Specialty: 12B10, Combat Engineer
m. GT Score: 92
n. Education: HS Graduate
o. Overseas Service: Korea, SWA
p. Combat Service: Iraq, 060901-071115
Afghanistan, 090901-100301
q. Decorations/Awards: ACM-CS, ICM-2CS, ARCOM, AAM, AGCM,
NDSM, GWOTSM, ASR, OSR-3
r. Administrative Separation Board: Waived
s. Performance Ratings: Yes
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 7 October 2004, for a period of 3 years and 18 weeks. He was 19 years old at the time of entry and a high school graduate. He reenlisted in the Army on 3 February 2007, for an unspecified period of time. He served in Afghanistan, Iraq, and Korea and earned an ARCOM and an AAM. He completed 6 years, 7 months, 17 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Carson, CO.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record shows that on 15 February 2011, the unit commander notified the applicant of initiation of separation action under provision of Chapter 14-5, AR 635-200, by reason of conviction by civil court, for pleading guilty to attempted sex assault of a child less than 15 years of age and attempted internet sex exploitation of a child.

2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3. On 17 February 2011, 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 elected to submit a statement on his behalf.

4. On 16 March 2011, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by an administrative separation board, and submitted a statement on his own behalf. The unit command recommended separation from the Army and waiver of further rehabilitation efforts. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge.

5. On 24 March 2011, the separation authority waived further rehabilitation efforts and directed the applicants discharge with a characterization of service of under other than honorable conditions. The applicant was directed to be reduced to the lowest enlisted grade.

6. The applicant was discharged from the Army on 29 April 2011, with a characterization of service of under other than honorable conditions under provision 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 4.

7. The applicants record of service indicates 211 days of time lost for being AWOL from 26 February 2010 until his return on 27 September 2010.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. One counseling statement, dated 22 December 2010, for Chapter 14-5 separation.

2. Jefferson County, Colorado Court Documents, dated 17 February 2010, reflects the applicant was the subject of an investigation for communicating over the internet sexually with a child under the age of 15 years old.

3. Denver Police Department Report, dated 17 September 2009, reflects the applicant was the subject of an investigation for sex exploitation of a child by the internet.

4. A supplemental report, dated 18 February 2010, reflects the applicant was charged with criminal attempt sexual exploitation of a child and internet sexual exploitation of a child.

5. Three NCOERs covering the period of 8 August 2007 through 24 September 2010. The applicant was rated as Among the Best, Fully Capable, and Marginal by his raters. He received a 2/1, 2/2, and 5/5 rating from his senior raters for his Overall Performance and Overall Potential.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 31 January 2014, a DD Form 214, two NCOERs, a DA Form 638, a letter from Wisdom Works Counseling Services, P.C., dated 10 January 2014, and a letter from the Fourth Judicial District Probation Department, dated 23 January 2014.

POST-SERVICE ACTIVITY:

The applicant states he has been doing his probation in the State of Colorado.

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, the documents 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. The applicant diminished the quality of his service below that meriting a general or a fully honorable discharge. The applicants record of service was marred by one negative counseling statement, a derogatory NCOER, and a civil conviction.

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

4. The applicant contends that he had good service which included six years and three months of honorable service. The applicants quality of service prior to the incident that caused the initiation of discharge proceeding was carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the seriousness of his misconduct.

5. The applicant further contends the civil conviction was at the end of his 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. 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.

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, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 23 January 2015 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) AR20140003161

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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