IN THE CASE OF: BOARD DATE: 19 April 2013 CASE NUMBER: AR20120021582 ___________________________________________________________________________ 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 under other than honorable conditions discharge be upgraded to honorable and his reentry code changed. 2. The applicant states, in effect, that he is respectfully requesting his military record be corrected to remove his separation under AR 635-200, Chapter 10, in lieu of trial by court-martial, with an under other than honorable conditions discharge and a separation code of KFS and Reentry Code 4. On behalf of the appellant, his counsel states, in effect, that the applicant’s conviction was based on fraudulent testimony and although his conviction is now gone, the taint of the conviction remains. The applicant was charged at a court-martial with violations of the UCMJ, Article 92, 107, 120 and 134. He entered pleas of guilty to adultery (Art 134) and fraternization (Art. 92) and vehemently denied the allegations alleging forcible sexual assault. A panel convicted him on 13 December 2007 of violations of Article 134, indecent assault and sentenced him to a dishonorable discharge, confinement for nine months, total forfeitures of pay and allowances and reduction to E-1. The applicant appealed his conviction and it was set aside and remanded to his Korean command for a new SJAR and action. Because of the discovery of fraud on the court by their complaining witness, the applicant’s command elected to approve the Chapter 10, he had submitted as part of his post-trial clemency petition. The findings of guilty and the sentence of the court-martial were disapproved and the charges dismissed. The applicant’s Chapter 10 request was made prior to the discovery of the fraud on the court and if given the opportunity, he would have withdrawn it. Had he received a new trial, he feels very strongly that he would have been exonerated by another jury with this new evidence of the witness’ fabrication of the assault in order to save her marriage and protect herself with her command. The applicant had to register as a sex offender In Texas. He was a convicted felon for a short time before his conviction was overturned. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 19 November 2012 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 9 November 2010 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: 188th Military Police Company, 94th Military Police Battalion, APO AP 96218 f. Current Enlistment Date/Term: 6 August 2005, 6 years g. Current Enlistment Service: 05 years, 03 months, 03 days h. Total Service: 11 years, 00 months, 12 days (includes 843 days of excess leave) i. Time Lost: 189 days, military confinement (071213- 080619) j. Previous Discharges: RA (990421-022204, HD), RA (021105-050805 HD) k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 11B10/Infantryman m. GT Score: 85 n. Education: HS Graduate o. Overseas Service: SWA x 3 p. Combat Service: Afghanistan (020831-030125), Iraq (030904-040331), and Afghanistan (050517-060305) q. Decorations/Awards: ARCOM-3, AAM, AGCM-2, NDSM, ACM- w/CS-2, GWOTEM, GWOTSM, ICM-w/CS-2 KDSM, CAB r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 21 April 1999 for a period of 4 years. He was 20 years old and had a high school diploma. He was trained in and awarded military occupational specialty (MOS) 14S10, Avenger Crewmember. His record documents three deployments to SWA, and was awarded three ARCOMs, an AAM, two AGCMs, and a CAB. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s disciplinary history includes accrual of 189 days of time lost for military confinement from 13 December 2007 until 19 June 2008. 2. On 25 May 2008, the applicant voluntarily requested a post-trial discharge in lieu of trial by court- martial under AR 635-200, Chapter 10. With this request, he requested disapproval of the findings from his December 2007 Court-Martial, though he still acknowledged his guilt. On 25 May 2008, 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 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 submitted a statement in his own behalf. 4. On 24 March 2010, the U.S. Army Court of Criminal Appeals after completing a Summary Disposition, set aside the convening authority’s initial action, dated 18 June 2008. The record of trial was returned to the JAG for a new SJAR and a new initial action by the same convening authority in accordance with Article 60 (c) - (e), UCMJ. 5. On 19 June 2010, the separation authority approved the applicant's post-trial request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate. 6. On 9 November 2010, the applicant was discharged accordingly. The DD Form214 (Report of Separation from Active Duty) he was issued shows he completed 11 years, and 12 days of creditable active military service and accrued 189 days of time lost due to military confinement. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: The General Court-Martial proceedings and the Case Separation Documents. There are no negative counselings or Article 15s in the applicant’s record. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149; a DD Form 214; a supporting memorandum from his counsel; Case Separation Documents, 23 pages; six character reference letters; and a self-authored statement with his application. POST-SERVICE ACTIVITY: None provided with the application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 (Personnel Separations) 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 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. 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. 3. 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. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "KFS" will be assigned a RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of his characterization and a change to his reentry code was carefully considered. 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 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 UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance. 4. On behalf of the applicant, his counsel states, in effect, that the applicant’s conviction was based on fraudulent testimony and his Chapter 10 request was made prior to the discovery of the fraud on the Court. If given the opportunity, he would have withdrawn it. Had he received a new trial, he feels very strongly that he would have been exonerated by another jury with this new evidence of the witness’ fabrication of the assault in order to save her marriage and protect herself with her command. a. 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 conviction was based on fraudulent testimony or that a new trial would have resulted in results or a different type of discharge. b. The counsel’s statement on behalf of the appellant 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. Moreover, records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge. Therefore, there is no basis for changing the applicant's RE Code and the applicant is no longer eligible for reenlistment. 6. A review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command or during the discharge process. It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 7. Therefore, the RE code and characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Record Review Date: 19 April 2013 Location: Washington, DC Did the Applicant Testify? No Counsel: Yes 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: 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) AR20120021582 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1