IN THE CASE OF: Mr. BOARD DATE: 3 April 2013 CASE NUMBER: AR20120014858 ___________________________________________________________________________ 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 his general, under honorable conditions discharge be upgraded to honorable. 2. The applicant states, in effect, that his discharge is inequitable because it is based on one isolated incident that occurred in 52 months of service with no other adverse action. He is applying for an upgrade to this discharge to better his life, enhance job opportunities and receive educational benefits. He was accused of sleeping with a friend's wife and accepted a plea bargain after 9 months of dealing with the stress and the accusations. His contract was up in 7 months and he intended to get out and attend college; so he accepted the plea bargain, and now regrets that he did so. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 13 August 2012 b. Discharge Received: Under Honorable Conditions (General) c. Date of Discharge: 3 November 2011 d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-4 e. Unit of assignment: 148th Military Police Company, 759th Military Police Battalion, Fort Carson, CO f. Current Enlistment Date/Term: 19 June 2007, 5 years g. Current Enlistment Service: 4 years, 4 months, 15 days h. Total Service: 4 years, 4 months, 15 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 31B10, Military Police m. GT Score: 114 n. Education: High School Graduate o. Overseas Service: Iraq p. Combat Service: Iraq (060809 – 070618) q. Decorations/Awards: ARCOM, AGCM, NDSM, ICM w/CSx2, GWOTSM, ASR, OSR r. Administrative Separation Board: None s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: None SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 June 2007 for a period of 5 years. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 31B10, Military Police. He served a combat tour in Iraq (060809 – 070618). He received the following awards: ARCOM, AGCM, NDSM, ICM w/CSx2, GWOTSM, ASR, and an OSR and completed 4 years, 4 months, and 15 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 17 August 2011, a court-martial charge was preferred against the applicant for violating Article 107 and Article 134 of the Uniform Code of Military Justice (UCMJ) based on the specification that the applicant signed an official record, a false sworn statement, with the intent to deceive on 17 March 2011 and the specification that the applicant wrongfully had sexual intercourse with, a married woman not his wife on 17 March 2011. 2. On 20 October 2011, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 3. In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge. He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge. He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws. The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf. 4. On 21 October 2011, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a general, under honorable conditions discharge certificate. 5. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Enlistment/Reenlistment Document signed 9 August 2006. 2. Certificate of Release or Discharge from Active Duty, DD Form 214. 3. Case Separation Files, Request for Discharge In Lieu of Trial by Court-Martial 4. One award certificate for the Army Commendation Medal EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 with a self authored statement, four statements of support, a letter of acceptance from a university and a DD Form 214. POST-SERVICE ACTIVITY: The applicant states he is currently employed and ready to continue his education and go to college. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 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, 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. The general, under honorable conditions discharge received by the applicant was appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable discharge by the separation authority at the time of discharge and it does not support an upgrade to an honorable discharge at this time. 4. The applicant contends that his discharge is inequitable because it is based on one isolated incident that occurred in 52 months of service with no other adverse action. The analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline. This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 5. The analyst noted the applicant's desire to attend college and use the benefits of the GI Bill. However, 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. Additionally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 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: Records Review Date: 3 April 2013 Location: Washington, DC Did the Applicant Testify? None Counsel: None Witnesses/Observers: 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: N/A Change RE Code to: N/A Grade Restoration to: N/A Other: N/A 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) AR20120014858 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1