IN THE CASE OF: Mr. BOARD DATE: 27 February 2015 CASE NUMBER: AR20140003960 ___________________________________________________________________________ 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 an upgrade of his discharge from under other than honorable conditions to honorable. 2. The applicant states, in effect, he served 25 months of honorable service; his misconduct occurred during his second enlistment. He needs an upgrade to due to medical reasons for injuries incurred on active duty to receive VA benefits. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 26 February 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 14 June 2012 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: 331st Transportation Company, 24th Transportation Battalion, Joint Base Langley-Eustis, VA f. Current Enlistment Date/Term: 25 February 2010/NIF g. Current Enlistment Service: 2 years, 3 months, 20 days h. Total Service: 4 years, 4 months, 23 days i. Time Lost: None j. Previous Discharges: RA (080122-100224)/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 25U10, Signal Support Systems Specialist m. GT Score: 111 n. Education: GED Certificate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: AAM-3, NDSM, GWOTSM, KDSM, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant was enlisted in the Regular Army on 22 January 2008, for a period of 4 years. He was 18 years old at the time of entry with a GED Certificate. He was trained in and awarded military occupational specialty (MOS) 25U10, Signal Support Systems Specialist. He reenlisted on 25 February 2010, the period of the enlistment was not in the file and he was 20 years old. His record shows he earned three AAMs; and he achieved the rank of SPC/E-4. He was serving at Joint Base Langley-Eustis, VA when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 1 March 2012, the applicant was charged with the following offenses: a. causing PFC J.B. to engage in a sexual act, to wit: penetrating the vulva of PFC J.B. with his penis, by using physical strength and restraint applied to her body, sufficient that she could not avoid or escape the sexual conduct (100722), b. engaging in a sexual act, to wit: using his penis to penetrate the vulva of PFC J.B, who was substantially incapacitated (100722), c. engaging in sexual contact, to wit: touching the genitalia of PFC J.B. when she was substantially incapacitated (100722), d. wrongfully commit indecent conduct, to wit: ejaculating on the tank top of PFC J.B. while she was wearing said tank top (100722), e. wrongfully engaging in sexual contact with PFC J.B.; to wit: contact between the penis of the accused and the genitalia of PFC J.B. and without the permission of, PFC J.B (100722), f. unlawfully ejaculating on PFC J.B’s chest with semen from his penis (100722), and g. being a married man, wrongfully having sexual intercourse with PFC J.B., a woman not his wife, such conduct being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces (100722). 2. On 14 May 2012, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser-included offense. The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant submitted a statement on his behalf, which is not contained in the available record. The applicant’s chain of command documentation recommending approval of the Chapter 10 request is not contained in the available record and government regularity is presumed in the discharge process. 3. On 18 May 2012, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 14 June 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4. 5. The applicant’s record of service does not show any record of unauthorized absences, time lost, actions under the Uniform Code of Military Justice (UCMJ) or negative counseling. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The record of evidence contains four CID Reports of Investigation, dated 16 November 2010, 7 October 2010, 17 September 2010, and 26 July 2010, indicating the applicant was under investigation for aggravated sexual assault. 2. The record of evidence contains several DA Forms 2823 (Sworn Statement), dated between 24 July 2010, 23 July 2010, 9 August 2010, 11 August 2010, which gave accounts of on the circumstances leading to the applicant’s aggravated sexual assault. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, self-authored statement, three character statements, and a DD Form 214. POST-SERVICE ACTIVITY: The applicant stated he is employed with CIT Group as a senior desktop analyst. REGULATORY AUTHORITY: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions 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. 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 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date. 4. The applicant contends he served 25 months of honorable service; his misconduct occurred during his second enlistment. 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 under review. 5. The applicant further contends he needs an upgrade to due to medical reasons for injuries incurred on active duty to receive VA benefits. The service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. 6. 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. 7. The character statements provided with the application speak highly of the applicant’s performance while on active duty. However, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 8. The records show the proper discharge and separation authority procedures were followed in this case. 9. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 27 February 2015 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) AR20140003960 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1