IN THE CASE OF: Mr. BOARD DATE: 11 February 2015 CASE NUMBER: AR20140003721 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the applicant's length and quality of his service including his combat service were not significantly meritorious to overcome the seriousness of the misconduct that caused his separation from the Army, and as a result the discharge was found to be proper and equitable. The Board voted to deny the relief requested because it found the nature of the applicant's misconduct does not warrant the award of an honorable characterization of service. 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 COUNSEL’S REQUEST AND STATEMENT: 1. Counsel requests an upgrade of the applicant’s under other than honorable conditions discharge to honorable, change block 25 to read “AR 635-200, Para 4-2,” change SPD Code to MBK, change reentry code to RE-1, change the narrative reason to reflect “release from active duty upon termination of enlistment”, and removal of the General Officer Memorandum of Reprimand. 2. Counsel states, in effect, the applicant’s discharge was erroneous and is a clear injustice. Counsel contends there was no substantial proof the applicant committed adultery and the civilian charge for aggravated assault was dismissed by a competent court of authority. Counsel further contends the applicant did not make a false official statement to anyone regarding the civilian incident that led to the discharge. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 22 February 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 27 March 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: Battalion Support Company, 2d Battalion, 5th Special Forces Group (Airborne), Fort Campbell, KY f. Current Enlistment Date/Term: 6 October 2010 / Indefinite g. Current Enlistment Service: 2 years, 5 months, 22 days h. Total Service: 16 years, 1 month, 28 days i. Time Lost: None j. Previous Discharges: DEP, 970116-970129, N/A RA, 970130-990422, HD RA, 990423-010701, HD RA, 010702-051201, HD RA, 051202-070125, HD RA, 070126-101003, HD k. Highest Grade Achieved: E-7 l. Military Occupational Specialty: 92Y10, Unit Supply Specialist m. GT Score: 113 n. Education: Associate’s Degree o. Overseas Service: Panama, SWA p. Combat Service: Iraq (030906-040213, 070103-080222) q. Decorations/Awards: BSM, MSM, ARCOM-4, AAM-3, PUC, VUA-2, AGCM-4, NDSM, ICM-CS, GWOTEM, GWOTSM, NPDR-3, ASR, OSR, 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 30 January 1997, for a period of 3 years. He was 19 years old at the time of entry and a high school graduate. He reenlisted five times since, acquiring an expiration term of service date of indefinite. He served in Panama and Iraq. He earned a BSM and an ARCOM for his tours in combat. He completed 16 years, 1 month, and 28 days of active duty service. When the separation proceedings were initiated, the applicant was serving at Fort Campbell, Kentucky. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 19 September 2012, the unit commander notified the counsel of initiation of separation action under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct (serious offense) for the following offenses: a. adultery (between about 111001 and 111221), b. aggravated assault on SPC R by pointing a gun at her chest (111221), and c. making a false official statement (120827) 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the counsel of his rights. 3. On 31 October 2012, the applicant consulted with legal counsel and waived his right to submit a conditional waiver and requested to have his case heard by an administrative separation board. The counsel 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 14 December 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. 5. On 13 February 2013, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions. 6. On 27 February 2013, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 7. The applicant was discharged from the Army on 27 March 2013, with a characterization of service of under other than honorable conditions under the provisions of AR 635-200, Chapter 14-12c, 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. Nine negative counseling statements, dated between 2 July 2011 and 12 September 2012, for a domestic violence incident, disrespect to a senior ranking noncommissioned officer, violating pass policy, repeated substandard performance, failure to report incident to the chain of command, repeated substandard performance, order to surrender personally owned weapon, allegations of domestic violence and abuse, initiation of administrative separation, and making false statements. 2. Preliminary Inquiry Investigating Officer’s (IO) findings, dated 27 January 2012, found the applicant not to have violated AR 600-20, paragraphs 4-14 or 4-15; however, his relationship with the two junior Soldiers could be in violation of Article 134. The IO recommended appropriate corrective, administrative, or disciplinary actions be taken as a result of the applicant’s conduct (18 pages). 3. Montgomery County, Tennessee, 19th Judicial Circuit Court, Court Transcript, dated 22 February 2012 (30 pages). 4. A General Officer Memorandum of Reprimand, dated 23 February 2012, for threatening a junior enlisted Soldier by pointing a firearm at her chest and having an inappropriate sexual relationship with the two junior Soldiers while being married. 5. Six NCOERs covering the period of 1 December 2007 to 14 August 2012. The applicant was rated as “Among The Best” and received “1/1” from the senior rater on five evaluations. The last and final evaluation prior to the applicant’s discharge, the applicant was rated as “Marginal” and received “4/4” from his senior rater. 6. DA Form 3822-R (Report of Mental Status Evaluation), dated 4 September 2012, reflects that the applicant had a clear and normal thought process and was mentally responsible. 7. Administrative Separation Board (ASB) Proceedings Findings and Recommendations Worksheet, dated 13 February 2013, reflect the applicant was found to have committed adultery, assaulted SPC R, and made a false official statement in a memorandum. The ASB determined that the applicant did not commit aggravated assault on SPC R. The ASB recommended the applicant be separated from the service with an under other than honorable conditions discharge (45 pages). EVIDENCE SUBMITTED BY THE COUNSEL: 1. The counsel provided a DD Form 293, dated 7 February 2014, and a DD Form 214 covering the period of service under review. 2. The counsel provided the following documents pertaining to the applicant’s separation: a. The Law Center Petition, dated 21 February 2014, in support of the applicant’s request to the Army Review Boards Agency (16 pages). b. A copy of the applicant’s case separation file. c. Clarksville Medical Specialists Letter, dated 21 January 2013, written by Dr. H certifying the applicant underwent a hernia repair procedure on 12 July 2012 (2 pages). d. Charles R. Scott Investigative Services Report of Polygraph Examination, dated 2 October 2012, reflects the applicant was administered a specific polygraph examination by the writer. The report provides the results, as well as the questions discussed with the applicant. The report concludes the applicant “failed to reveal criteria to indicate deception with his answers provided and that he has been truthful in providing information during the investigation (5 pages). POST-SERVICE ACTIVITY: None was 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. 2. After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons: a. Length of service: The applicant served a total of 16 years, 1 month, and 22 days of military service, thus the preponderance of his service was honorable. b. Quality of service: The record confirms the applicant received several awards, specifically a BSM, an ARCOM, and a CAB for tours in combat. 3. This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct. The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 4. Counsel contends the applicant’s discharge was unjust because there was no substantial proof the applicant committed adultery, the aggravated assault charge was dismissed, and the applicant did not make a false official statement to anyone. 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 counsel produced any evidence to support the contention that the applicant was unjustly discriminated 5. Counsel requests change to block 25 to read “AR 635-200, Para 4-2,” change to the narrative reason to reflect “release from active duty upon termination of enlistment”, and removal of the General Officer Memorandum of Reprimand. However, the applicant’s requested changes to the DD Form 214 do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 6. In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable. BOARD DETERMINATION AND DIRECTED ACTION After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the applicant's length and quality of his service including his combat service were not significantly meritorious to overcome the seriousness of the misconduct that caused his separation from the Army, and as a result the discharge was found to be proper and equitable. The Board voted to deny the relief requested because it found the nature of the applicant's misconduct does not warrant the award of an honorable characterization of service. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 11 February 2015 Location: Washington, DC Did the Counsel Testify? NA Counsel: Yes [redacted] Witnesses/Observers: NA Board Vote: Character Change: 1 No Change: 4 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) AR20140003721 Page 7 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1