IN THE CASE OF: BOARD DATE: 22 October 2014 CASE NUMBER: AR20140013849 ___________________________________________________________________________ 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 upgrade of his general, under honorable conditions discharge to honorable, and change to narrative reason for separation. 2. The applicant states, in effect, his discharge was unjust because he was not found guilty of any of the charges, nor was he a subject of a court martial. The applicant contends his case should have been looked at closely. The applicant contends that an upgrade of his discharge will afford him better job opportunities. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 August 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 5 July 2014 d. Reason/Authority/SPD/RE Code: Misconduct (Serious offense), AR 635-200 Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: 21st Chemical Company, 192d Ordnance Battalion, 82d Sustainment Brigade, Fort Bragg, North Carolina f. Current Enlistment Date/Term: 23 August 2012/4 years g. Current Enlistment Service: 1 year, 10 months, 13 days h. Total Service: 10 years, 10 months, 23 days i. Time Lost: None j. Previous Discharges: DEP, 030418-030812, N/A RA, 030813-080313, HD RA, 080314-100930, HD RA, 101001-120822, HD k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 74D30, Chemical Operations Specialist m. GT Score: 119 n. Education: HS Graduate o. Overseas Service: SWA, Germany p. Combat Service: Iraq (040109-050302, 091017-100625), Afghanistan (060722-070227, 080229-080917) q. Decorations/Awards: ACM-2CS, JSCM, AAM-5, MUC-2, USAFPUC VUA, AGCM-3, NDSM, GWOTEM, GWOTSM ICM-3CS, NPDR, ASR, OSR-4, NATO MDL CAB r. Administrative Separation Board: Yes s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 13 August 2003, for 6 years. He reenlisted in the Regular Army on 23 August 2012, for a period of 4 years. He was 28 years old at the time and a high school graduate. He served in Germany, Iraq, and Afghanistan. He earned a JSCM and a CAB and completed 10 years, 10 months, and 23 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Bragg, North Carolina. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 27 November 2013, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct (commission of a serious offense), for unlawfully grabbing the wrist and waist of SPC S while in her barracks room, inappropriately touching her on the thighs with his hands, licking her neck, and deliberately making sexual gestures and comments to her. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 27 November 2013, the applicant consulted with legal counsel. On 3 December 2013, the applicant requested a personal appearance before an administrative separation board. The applicant 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 an under other than honorable conditions discharge. 4. On 9 January 2014, the applicant was notified to appear before an administrative separation board and advised of his rights. 5. On 13 March 2014, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions. 6. On 10 April 2014, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 7. The applicant was discharged from the Army on 5 July 2014, 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), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 8. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A CID Report of Investigation, dated 11 June 2013, that indicates the applicant was the subject of an investigation for abusive sexual contact (adult). 2. DA Form 4856 (Developmental Counseling Form), dated 6 September 2013, for abusive sexual contact. 3. A General Officer Memorandum of Reprimand, dated 3 October 2013, for inappropriately and unlawfully touching and making sexual comments towards SPC S. 4. One NCOER covering the period of 1 March 2013 to 28 January 2014. The applicant was rated as “Marginal” and received “4/4” from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided an online application, dated 30 July 2014, and a DD Form 214 covering the period of service under review. 2. Applicant provided a copy of his separation packet, with stated enclosures. POST-SERVICE ACTIVITY: None 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. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 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, 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 general or a fully honorable discharge. 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 the discharge was unjust because he was not found guilty of any of the charges, nor was he a subject of a court martial. 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 unjustly discriminated. 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 his discharge should be upgraded because his case should have been looked at closely. 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. 6. The applicant contends that an upgrade of his discharge will allow him to obtain better employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 7. The records show the proper discharge and separation authority procedures were followed in this case. 8. 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: 22 October 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None 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: No Change Change RE Code to: No Change 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) AR20140013849 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1