IN THE CASE OF: Mr. BOARD DATE: 9 July 2014 CASE NUMBER: AR20140004983 ___________________________________________________________________________ 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 general, under honorable conditions discharge to fully honorable. 2. The applicant states, in effect, his discharge was for adultery and one driving under the influence (DUI) charge. He states after his separation from the military, a second DUI charge was dismissed by the court. There was an investigation into his adultery that lasted for one year and based on the results he was reduced in rank. He contends it was based on one phone call and the perception of adultery, but no actual proof of adultery. His was reduced to the grade of E-4 six months before his retention control point. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 16 December 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: Company A, Tripler Army Medical Center (TAMC), Schofield Barracks, HI f. Current Enlistment Date/Term: 29 June 2005/6 years g. Current Enlistment Service: 7 years, 5 months, 18 days h. Total Service: 7 years, 5 months, 18 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 68P10, Radiology Specialist m. GT Score: 106 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (070604-080715), (090815-100730) q. Decorations/Awards: ICM-2CS, ARCOM-5, AAM, MUC, AGCM-2 NDSM, GWOTSM, ASR, OSB-4, OSR-2 r. Administrative Separation Board: NIF s. Performance Ratings: Yes t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 29 June 2005, for a period of 6 years. He was 18 years old at the time of entry and a high school graduate. He served in Iraq and earned an ARCOM and AAM. He completed 7 years, 5 months, and 18 days of active duty service. When his discharge proceedings were initiated, he was serving at Schofield Barracks, Hawaii. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. 2. The DD Form 214 indicates that on 16 December 2012, the applicant was discharged under the provisions of Chapter 14, AR 635-200, for misconduct (serious offense), with a characterization of service of general, under honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3. 3. The applicant’s available record shows a FG Article 15, dated 19 December 2011, for disobeying a lawful order, committing indecent conduct by sending a lewd photo of himself to SSG W, having sexual intercourse with SSG W and Ms. M, women not his wife x 2 (110622 and 110701-111108). He was separated as a PFC/E-3 and the action that caused his reduction to this pay grade is not contained in the service record. 4. On 15 October 2012, DA Headquarters, Tripler Army Medical Center (AMC), Tripler AMC, Hawaii, Orders Number 289-0019, discharged the applicant from the Army effective 16 December 2012. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Discharge Orders Number 289-0019, dated 15 October 2012, DA Headquarters, Tripler Army Medical Center, Tripler AMC, Hawaii, effective date of 16 December 2012. 2. GOMOR, dated 2 July 2012, the applicant was reprimanded by the Commander, Headquarters, Tripler AMC, Tripler AMC, Hawaii, for speeding and driving under the influence with a blood alcohol concentration of 0.139 percent. 3. Article 15, dated 19 December 2011, for disobeying a lawful order, committing indecent conduct by sending a lewd photo of himself to SSG W, having sexual intercourse with SSG W and Ms. M, women not his wife x 2 (110622 and 110701-111108). The punishment consisted of reduction to the grade of E-4, and extra duty for 45 days (suspended), to be automatically remitted if not vacated before 17 February 2012 (FG). The applicant did not appeal the punishment. 4. Three NCOERs covering the period of 1 November 2008 through 31 October 2011. He was rated as “Among the Best” on two reports and “Fully Capable” on the remaining report. He received two “1/1” and a “2/2” rating from his senior raters (SRs) for his “Overall Performance/Overall Potential.” His SRs recommended him for promotion ahead of his peers. The misconduct was not reflected on his evaluation. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 11 March 2014, and a DD 214 covering the period of service under review. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his 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. 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 issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214, which was authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. 3. The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. The applicant's contention that one of his DUI charges was dismissed by a civilian court. However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen. Further, the applicant received a GOMOR for the misconduct. 5. The applicant’s contention that his chain of command had no proof of his adultery was carefully considered. However, the applicant received a FG Article 15 for committing adulterous acts and willfully disobeying a lawful order from a commissioned officer. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 6. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record. 7. Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 9 July 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: Yes [redacted] Witnesses/Observers: No 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) AR20140004983 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1