IN THE CASE OF: Mr. BOARD DATE: 4 December 2013 CASE NUMBER: AR20130009496 ___________________________________________________________________________ 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 to upgrade his characterization of service from general, under honorable conditions to fully honorable. 2. The applicant states, in effect, the reasons are that the incident, which resulted in his discharge was a one time isolated event. It does not represent or accurately portray the rest of his military career. He was entitled to a review board before being discharged, but was made to feel as though getting out immediately was the best option for him. He was unaware of the type of discharge he would be receiving, or the limitations that it would put on certain aspects of his life. If he had known the type and limitations of this discharge, he would have fought to stay in, or at least fought for an honorable discharge. Before the incident that led to his separation, he received an ARCOM, was performing 300 plus on APFTs, and looking to attend the E-6 promotion board. He feels his reduction in rank from SGT to SPC, and the other aspects of his Article 15 punishment were more than substantial punishment in this incident; and that was just being made an example of by the new incoming commander. Another Soldier in the same incident was permitted to remain in the military with no further punishment. He is aware his incident, a one time event, was still unacceptable. He made changes to his life and feels he is on a good path. An upgrade would further his progress and assist with his college tuition. Since being discharged, he maintained employment for three years as a civil service employee. He has received various incentive awards as well as an employee of the year award. He is also in school full time, working towards an associate degree in networking technologies. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 16 May 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 17 August 2007 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: A Co, 8th Psychological Operations Battalion (Airborne), Fort Bragg, NC f. Current Enlistment Date/Term: 20 April 2006, 5 years g. Current Enlistment Service: 1 year, 3 months, 28 days h. Total Service: 9 years, 6 months, 24 days i. Time Lost: None j. Previous Discharges: DEP (980124-980531) / NA RA (980601-000625) / HD RA (000626-010412) / HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 37F1P, PSYOP Specialist m. GT Score: 109 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (060620-070301) q. Decorations/Awards: ARCOM; AAM; AGCM; NDSM; ICM; GWOTEM; GWOTSM; AFRM; ASR; OSR; PUC; JMUA; MUC; ASUA r. Administrative Separation Board: No, unconditionally waived s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 1 June 1998, but was discharge from active duty under the provisions of (UP) Chapter 18, AR 635-200, for weight control failure, and was further transferred to the USAR Control Group. On 2 June 2004, the applicant enlisted in the Regular Army, and reenlisted 20 April 2006, for a period of 5 years. He was 23 years old at the time of his second entry and a high school graduate. He served in Iraq. He earned an ARCOM and an AAM. He completed 9 years, 6 months, and 24 days of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 1 June 2007, 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, commission of a serious offense, for: a. maintaining an inappropriate relationship with SPC G (061101-070115), in violation of paragraph 4-14, Army Regulation 600-20, dated 7 June 2006, b. receiving a FG Article 15 (070130) for wrongfully creating and possessing pornography (061101-070115), in violation of General Order Number 1, dated 2 May 2006, while deployed with the Psychological Operations Task Force-Iraq (POTF-IZ) at Camp Victory, Iraq, c. receiving a FG Article15 (070130) for wrongfully exposing to public view pictures of him and SPC G in provocative or sexually explicit positions (061101-070115), and d. wrongfully displaying sexually explicit pictures of him and SPC G on a government-owned computer (061101-070115). 2. The unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 30 July 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and did not submit a statement on his 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 of the separation with a general, under honorable conditions discharge. 4. On 31 July 2007, 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 2007, 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. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 30 January 2007, wrongful indecent exposure (061101-070115), disobeying a lawful order (061101-070115). The punishment consisted of reduction to the grade of E-4, forfeiture of $1,031.40 per month for one month, 45 days of extra duty and restriction, (FG). 2. Four negative counseling statements, dated between 16 January 2007 and 1 June 2007, for being directed to have no contact with SPC G; removal of security clearance and the administration of suspension of favorable actions due to an inappropriate relationship; and the initiation of separation for commission of a serious offense. 3. DA Form 4187, Personnel Action, dated 6 April 2007, indicates the applicant was reduced in rank. 4. DA Form 3744, Affidavit Supporting Request for Authorization to Search and Seize or Apprehend, dated 23 January 2007, rendered by the unit commander details the basis for conducting a search. 5. Memorandum for Record, dated 25 January 2007, indicates the applicant’s refusal to sign a sworn statement. 6. One NCOER covering the period of 1 February 2006 to 29 January 2007, rendered for “Relief of Cause.” The applicant was rated as “marginal” and received 3/3 from the senior rater. 7. Two DA Forms 1059, Service School Academic Evaluation Report, dated 9 March 1006 and 24 June 2005, indicates the applicant completed the special operations language training course and the PSYOP specialist course, respectively. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a copy of his transcript, dated 13 May 2013; notification of personnel action, dated 12 August 2012, indicates his employment with an Army installation as an electrical worker and an increase in step level of his grade; achievement medal certificate for civilian service, dated 11 July 2012; and certificate for “Going Above and Beyond Award,” dated 19 December 2011. POST-SERVICE ACTIVITY: The applicant states, in effect, he has maintained employment for three years as a civil service employee, and received various incentive awards as well as an employee of the year award. He is also in school full time, working towards an associate degree in networking technologies. 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 documents and 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 serious incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice and negative counseling statements. 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 incident that caused his discharge was the only one in his entire Army career. Although 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 there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's serious incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. 5. The applicant contends the discharge was unjust because although he was entitled to a separation board before being discharged, he was made to feel as though getting out immediately was the best option for him, and that he was unaware of the type of discharge he would be receiving, or the limitations that it would put on certain aspects of his life. 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 may have been unjustly discriminated. In fact, the applicant’s Article 15 and numerous negative counseling statements justify the serious incident of misconduct that led to his separation. Moreover, the record indicates the unit commander advised the applicant of his rights, and thereafter, the applicant consulted with a legal counsel, who advised him of the impact of the discharge action. The applicant then voluntarily waived consideration of his case by an administrative separation board, and further elected not to submit a statement on his own behalf. 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. 6. The applicant contends that his reduction in rank from SGT to SPC, and the other aspects of his Article 15 punishment were more than substantial punishment in this incident that caused his separation and that he was just being made an example of by the new incoming commander. However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated 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 may be granted. In addition, punishment under the UCMJ proceedings is entirely a separate process. 7. The applicant contends that another Soldier with the same offense was not discharged or allowed to stay in the Army. However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 8. The applicant contends that he had good service which included receiving an ARCOM, performing 300 plus on AFPTs, and was looking to attend the E-6 promotion board. 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 serious incidents of misconduct or by the negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice. 9. The applicant contends that since leaving the Army he has been employed continuously since; received various incentive awards, including employee of the year award; and is a full-time student working toward a degree. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. 10. The applicant has expressed his desire to progress further, perhaps by having better job opportunities and the benefits of the GI Bill to assist with his college tuition. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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. 11. 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. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 12. 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: 4 December 2013 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) AR20130009496 Page 8 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1