IN THE CASE OF: Mr. BOARD DATE: 27 March 2015 CASE NUMBER: AR20140007176 ___________________________________________________________________________ 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 from general, under honorable conditions to honorable. 2. The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to reenter the military and receive the education benefits he earned so he can make a better life for him and his family. He contends his characterization of service was inequitable because of an unjust conviction from a Summary Court-Martial and multiple punishments for one incident. The applicant contends while serving on active duty he strived to excel above his peers; consistently scoring 300+ on the APFT, receiving honors in basic training, chosen for displays of the Avenger Weapon System, received coins from events, participations, and prayer breakfasts. He was fast tracking to becoming a specialist. He was taking college courses, was chosen by his platoon to participate in the Solider of the Quarter, everything he strived to achieve to better himself, his unit, and serve his country vanished. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 April 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 17 August 2013 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200 Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: E Btry, 6th Bn, 52nd ADA, 210th FB, Camp Casey Korea f. Current Enlistment Date/Term: 2 November 2010, 3 years and 26 weeks g. Current Enlistment Service: 2 years, 8 months, 22 days h. Total Service: 2 years, 8 months, 22 days i. Time Lost: 24 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 14S10, Avenger Crewmember m. GT Score: 126 n. Education: HS Graduate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, OSR-2 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 Regular Army on 2 November 2010, for a period of 3 years and 26 weeks. He was 19 years old at the time and a high school graduate. He was serving at Camp Casey, Korea, when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 29 July 2013, 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 tried and convicted at a Summary Court-Martial, and found guilty of indecent conduct. 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 29 July 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 4. 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 17 August 2013, 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 record of service indicates 24 days of time lost, as a result of, punishment received on his Summary Court-Martial from 26 April 2012, until his release on 19 May 2013. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Summary Court-Martial, dated 26 April 2013, for wrongfully committing indecent conduct, to wit: photographing, with his cellular phone, SPC M.C.F. penetrating Ms. C.C.G's month and vulva with his penis. The punishment consisted of reduction to the rank of E-1, and confinement for 30 days. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, a self-authored letter, pages from his separation packet (six pages), certificates of appreciation and achievement, a copy of his Army Physical Fitness Test Scorecard, four photos, and a copy of his DD Form 214, for the period of service under review. POST-SERVICE ACTIVITY: None was provided by the applicant. 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, 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 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 a Summary Court-Martial for violations of the Uniform Code of Military Justice (i.e., indecent conduct). 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 his discharge was inequitable because of an unjust Summary Court-Martial conviction. 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 his discharge was unjust. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 5. The applicant contends he had good service. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were 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 incident of misconduct and the documented actions under the Summary Court-Martial proceedings. 6. Furthermore, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge. 7. The applicant expressed his desired for an upgrade of his discharge for the purpose of being able to rejoin the military and receive the education benefits he earned. However, the Board does not grant relief for the purpose of gaining G.I. Bill benefits. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 8. Also, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes, if appropriate. 9. 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. 10. 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: 27 March 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) AR20140007176 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1