IN THE CASE OF: Mr. BOARD DATE: 22 October 2014 CASE NUMBER: AR20140008853 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 under other than honorable conditions discharge to general, under honorable conditions. 2. The applicant states, in effect, there were several things that happened during the period of service leading up to his discharge. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 20 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 27 May 2011 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: 119th Inland Cargo Transfer Company, Joint Base Little Creek-Story, VA f. Current Enlistment Date/Term: 15 February 2008/6 years g. Current Enlistment Service: 3 years, 3 months, 13 days h. Total Service: 6 years, 5 months i. Time Lost: None j. Previous Discharges: RA (041228-080214), HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 88N10, Traffic Management Coordinator m. GT Score: 90 n. Education: HS Graduate o. Overseas Service: Korea, SWA p. Combat Service: Iraq (070418-080720) q. Decorations/Awards: AGCM, NDSM, GWOTSM, KDSM, ICM-CS NPDR, ASR r. Administrative Separation Board: Waived s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 28 December 2004, and reenlisted in the Regular Army on 15 February 2008, for a period of 6 years. He was 25 years old at the time of reenlistment and a high school graduate. He served in Korea and Iraq and did not earn any significant awards of valor or achievement. He completed 6 years and 5 months of active duty service. When his discharge proceedings were initiated, he was serving at Fort Eustis, Virginia. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 19 April 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for, pleading guilty in a summary court-martial for dereliction of duty and consensual sodomy. He had a pretrial agreement to unconditionally waive his right to an administrative separation board and receive an under other than honorable conditions discharge. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge. 3. On 21 April 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, entered into a pretrial agreement (offer to plea), unconditionally waived his right to an administrative separation board, and did not submit a statement in his own behalf. 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 with an under other than honorable conditions discharge. 4. On 20 May 2011, the separation authority approved the unconditional waiver request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted grade of PVT/E-1. 5. The applicant was separated on 27 May 2011, under Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense), with a under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 3. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A pretrial agreement between the United States and the applicant, dated 16 February 2011, reflects the applicant agreed to plead guilty and waive his rights to an administrative separation board and understood that he would be issued an under other than honorable conditions discharge. 2. DA Form 458 (Charge Sheet), dated 19 November 2010, reflects the applicant was charged with dereliction in the performance of his duties and committing sodomy with PFC P, without her consent. 3. DA Form 2329 (Record of Trial by Summary Court-Martial), dated 16 March 2011, reflects the applicant plead guilty to two charges. As a note, his guilty plea that he committed sodomy with PFC P by force and without her consent, had exceptions and substitutions. His guilty plea with exception and substitution, were excepting the words “by force and without” and substituting therefore the word “with.” The punishment consisted of reduction to the grade of SPC/E-4, forfeiture of $200 pay per month for one month, and 45 days of restriction. 4. DA Form 4430 (DA Report of Result of Trial), dated 16 March 2011, reflects the applicant was found guilty of violating Article 92 and 125 of the UCMJ. The punishment consisted of reduction to the grade of SPC/E-4, forfeiture of $200 pay per month for one month, and 45 days of restriction. The effective date of the adjudged sentence and any forfeiture or reduction in grade was 30 March 2011. 5. The applicant received three NCOERs covering the period 1 December 2006 through 30 November 2010. He was rated “Fully Capable” by his raters and received a “2/1,” “2/2,” and a “2/3” rating from his senior raters (SRs). He was recommended for promotion with his peers by all SRs. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 16 May 2014, and a DD Form 214 covering 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, his military records, 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. The applicant diminished the quality of his service below that meriting a general or a fully honorable discharge. The applicant’s record of service was marred by a summary court-martial for dereliction in the performance of his duties and committing sodomy. 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 there were several things that happened during the period of service leading up to his discharge; however, did not provide any evidence to support his claim. However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. 5. The records show the proper discharge and separation authority procedures were followed in this case. 6. 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: Personal Appearance Date: 22 October 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: No DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted no additional documents or issues. 2. In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 2 No Change: 3 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) AR20140008853 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1