Applicant Name: ????? Application Receipt Date: 2012/02/24 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant did not submit an issue of equity or propriety for the boards consideration. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 090303 Discharge Received: Date: 100531 Chapter: 14-12c AR: 635-200 Reason: Misconduct (Serious Offense) RE: SPD: JKQ Unit/Location: Alpha Battery, 2-77 Field Artillery Battalion, Fort Carson, CO Time Lost: None Article 15s (Charges/Dates/Punishment): 090209, disobeyed a lawful order from SSG, a noncommissioned officer (080428), maltreated a SPC (081022), with intent to deceive, made an official statement to a Special Agent, which statement was false (081022), willfully and wrongfully exposed his genitals in an indecent manner while in a public place on divers occasions (081022), on divers occasions, engaged in sexual contact with a SPC, which such sexual contact was without legal justification or lawful authorization (080501-081022), unlawfully touch a SPC between (080201-080229), reduction to Specialist (E-4), forfeiture of $1,109.00 pay per month for two months, extra duty and restriction for 45 days (FG) 070930, dereliction of duty; in that he negligently failed to maintain accountability of his M4 Carbine, as it was his duty to do so (070907), forfeiture of $665.00 pay per month, extra duty for 14 days (CG) Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 26 Current ENL Date: Reenl/060614 Current ENL Term: 5 Years ????? Current ENL Service: 3 Yrs, 11 Mos, 18 Days ????? Total Service: 9 Yrs, 11 Mos, 18 Days ????? Previous Discharges: USAR 000512-000612/NA RA 000613-030723/HD RA 030724-060613/HD Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 13D10 Field Artillery Autom GT: 93 EDU: HS Grad Overseas: Southwest Asia Combat: Iraq x 3, (030212-030531), (051105-061019), (070801-080112) Decorations/Awards: ARCOM (2), AAM, GCMDL (2), NDSM, GWOTEM, GWOTSM, ICMw/CS (2), NCOPDR, ASR, OSR, MUC, V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 3 March 2009, 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-commission of a serious offense; in that he recieved an Article 15 for disobeying an order by a Noncommisioned Officer, maltreating a soldier, giving a false statement, willifully and wrongfully exposed in an indecent manner to public view his genitals, engaged in sexual contact with a Soldier, and unlawfully touched a Soldier, with an under other than honorable conditions discharge. He was advised of his rights. On 5 March 2009, the applicant consulted with legal counsel, requested consideration of his case by an administrative separation board and did not submit a statement in his own behalf. On 3 March 2009, the unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. On 4 March 2009, the intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. On 21 December 2009, the senior intermediate commander recommended approval with a general, under honorable conditions discharge. On 11 February 2010, 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-commission of a serious offense; in that he disobeyed an order from a noncommissioned officer, maltreated a Soldier, gave a false official statement, willfully and wrongfully exposed in an indecent manner to public view his genitals, engaged in sexual contact with a Soldier and unlawfully touched a Soldier. The unit commander recommended separation with an under other than honorable conditions discharge. On 10 March 2010, the separation approving authority appointed an administrative separation board. On 14 April 2010, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general, under honorable conditions discharge. On 19 April 2010, the intermediate commander recommended approval with a general, under honorable conditions discharge. On 26 April 2010, the senior intermediate commander recommended approval with a general, under honorable conditions discharge. On 29 April 2010, the separation authority reviewed the administrative separation action and directed that the applicant be processed under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct-commision of a serious offense and further determined that the applicant's medical condition was not a direct or substantial contributing cause of the misconduct and that the administrative separation under the provisions of Chapter 14-12c, commission of a serious offense, is appropriate in the applicant's case. The separation authority approved the administrative separation and directed that the applicant be discharged with a general, under honorable conditions. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation 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 absence 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The analyst determined that the applicant’s 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. By the misconduct, the applicant diminished the quality of the applicant's service below that meriting a fully honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. The analyst noted that the applicant did not submit an issue of equity or propriety on his DD Form 293 for the boards consideration. Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 5 September 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 19 February 2012. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: No Change RE Code: Grade Restoration: No Yes Grade: No Change XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20120004106 ______________________________________________________________________________ Page 3 of 4 pages