IN THE CASE OF: BOARD DATE: 11 June 2014 CASE NUMBER: AR20140005374 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 that his under other than honorable conditions discharge be upgraded to honorable. 2. The applicant states, in effect, he was falsely accused of crimes which he did not commit. At the time of his discharge, he was truly uneducated as to what the ramifications of this type of discharge would have. He was told by his lawyer that he would be able to upgrade his discharge within a year and he thought by getting out would be the best thing. It has been ten years and he is still trying to rightly upgrade his characterization of service. The applicant further stated that he did not rape, kidnap, or maltreat the defendant. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 March 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 26 January 2004 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: D Battalion Support Company, 15th Forward Support Battalion, Division Support Command 1st Cavalry Division, Fort Hood, TX f. Current Enlistment Date/Term: Reenl/15 March 2002, 2 years g. Current Enlistment Service: 1 year, 10 months, 11 days h. Total Service: 10 years, 4 months, 6 days i. Time Lost: None j. Previous Discharges: RA 930921-960606/HD RA 960607-980618/HD RA 980619-000910/HD RA 000911-020314/HD k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 45K10 Armament Repairer, 11H10, Heavy Anti Arm Weapons Infantryman m. GT Score: 112 n. Education: HS Graduate o. Overseas Service: Korea (981208-991207) p. Combat Service: None q. Decorations/Awards: AAM-2, AGCM-3, NDSM-2, NPDR, ASR, OSR r. Administrative Separation Board: NA s. Performance Ratings: Yes t. Counseling Statements: No u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant reenlisted in the Regular Army on 15 March 2002, for a period of 2 years. He was 27 years old at the time he reenlisted, completed several military courses and accumulated 53 semester hours from Central Texas College. He served in Korea during the period (981208-991207). He earned an AAM and an AGCM and completed 10 years, 4 months, and 6 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 27 May 2003, court-martial charges was preferred against the applicant for violating Article 120 and Article 134 of the Uniform Code of Military Justice (UCMJ) specifically for the rape of PFC P and willfully and wrongfully confine and hold PFC P, a person not a minor, against her will (030509). 2. On 9 December 2003, 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 for the good of the service 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 did not submit a statement in his own behalf. 4. On 23 December 2003, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate. 5. The applicant was separated on 26 January 2004, under Army Regulation 635-200, Chapter 10, with an under other than honorable conditions discharge, an SPD code of KFS, and an RE code of 4. The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 10 years, 4 months and 6 days of creditable active military service. 6. The applicant’s record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Investigating Officers Report (Of Charges Under Article 32, UCMJ and R.C. 405, Manual for Courts-Martial) dated 5 September 2003, where the applicant was the subject of investigation involving the rape of PFC P and willfully and wrongfully confining and holding PFC P, a person not a minor, against her will. 2. Serious Incident Report (SIR) dated 10 May 2003, that indicates the applicant was the subject of an investigation for alleged sexual assault and rape. 3. An NCOER covering the period of 15 March 2002 to 31 March 2002. The applicant was rated as among the best and received successful/superior from the senior rater. 4. An NCOER covering the period of 1 April 2002 to 31 August 2002. The applicant was rated as among the best and received successful/superior from the senior rater. 5. An NCOER covering the period of 1 September 2002 to 27 February 2003. The applicant was rated as among the best and received successful/superior from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 dated 17 March 2014. POST-SERVICE ACTIVITY: The applicant did not provide any with the application. 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. 2. 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. 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 and the 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 misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge. The applicant’s record of service was marred by several violations of the Uniform Code of Military Justice]. 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 he was falsely accused of crimes which he did not commit. At the time of his discharge, he was truly uneducated as to what the ramifications of this type of discharge would have. 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. The applicant chose to admit guilt to the stipulated or a lesser-included offense, such as rape of PFC P and willfully and wrongfully confining and holding PFC P, a minor, against her will. 5. The applicant contends he was told by his lawyer that he would be able to upgrade his discharge within a year and he thought by getting out would be the best thing. It has been ten years and he is still trying to rightly upgrade his characterization of service. 6. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. 7. The applicant further stated that he did not rape, kidnap, or maltreat the defendant. 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 and that the applicant did not commit the aforementioned charges which led to his discharge from the Army. 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, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 11 June 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: The applicant submitted the following additional documents: Cover letter and résumé In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. 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: 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) AR20140005374 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1