IN THE CASE OF: Mr. BOARD DATE: 1 May 2015 CASE NUMBER: AR20140005415 ___________________________________________________________________________ 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his discharge characterization from general, under honorable conditions to honorable. 2. The applicant states, in effect, that he was wrongfully discharged. He contends, he had no convictions of a crime during his enlistment. He was convicted of a crime two years and three months after his ETS date. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 March 2014 b. Discharge received: General, Under Honorable Conditions c. Date of Discharge: 12 January 2009 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: HHC, 1st AC Bde, Fort Hood, TX f. Current Enlistment Date/Term: 19 January 2005, 4 years g. Current Enlistment Service: 3 years, 11 months, 24 days h. Total Service: 6 years, 2 months, 20 days i. Time Lost: None j. Previous Discharges: RA-021023-050118/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 15R10, AH-64 Attack Helicopter Repairer and 19K10 M1 Armor Crewman m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (030807-040911) q. Decorations/Awards: ARCOM, AGCM, NDSM, GWOTSM, GWOTEM NPDR, ASR, OSR 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 23 October 2002, for a period of 3 years. On 19 January 2005, he reenlisted for a period of 4 years. He was 30 years old at the time of reenlistment and a high school graduate. His record indicates he served in Iraq; achieved the rank of SPC/E-4; and earned several awards to include an ARCOM and the AGCM. He was serving at Fort Hood, TX when separation action was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 18 December 2008, 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 (serious offense) for being arrested and charged with public intoxication that occurred (080505) and was charged with sexual assault. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 19 December 2008, 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 and indicated his intentions to submit a statement on his behalf which was not found in the record. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. 4. On 22 December 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was discharged from the Army on 12 January 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and a RE code of 3. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Army Substance Abuse Program (ASAP) Enrollment form, dated 10 September 2008, which indicates the applicant was command-referred as a result of unexcused absences and charges stemming from an incident at a local bar. Record of civilian arrests/convictions indicates sexual assault (Article 120, UCMJ: Rape). 2. A CID Report dated 12 August 2008, which indicates the applicant was a subject of an investigation for rape. 3. A negative counseling statement dated 8 September 2008, which indicates the applicant was being informed on the command's recommendation to separate him from the Army. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and DD Form 149, and a copy of his DD Form 214 for the period of service under review. POST-SERVICE ACTIVITY: None were provided 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 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. 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 Soldier’s separation specifically allows such characterization. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record confirms 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. 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 applicant’s record of service was marred by his acts of misconduct (i.e., being arrested and charged with public intoxication and being charged with sexual assault). 3. 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. 4. The applicant contends he was wrongfully discharge. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was wrongfully discharge. 5. The applicant contends he was not convicted of any crime until two years and three months after his ETS. However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty. Evidence of record shows the applicant was charged with sexual assault/rape. 6. 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. The character of the applicant’s discharge is commensurate with his overall service record. 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: 1 May 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) AR20140005415 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1