IN THE CASE OF: Mr. BOARD DATE: 1 May 2015 CASE NUMBER: AR20140008650 ___________________________________________________________________________ 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 under other than honorable conditions discharge characterization to honorable or general, under honorable conditions and a change to his reentry code. 2. The applicant states, in effect, at some point after counseling he would like to reenter the military and continue his career as a Soldier. The applicant did not present any issues of propriety or equity for the Board to consider. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 16 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 6 November 2013 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: Company D, 2nd Battalion, 10th Infantry, Fort Leonard Wood, MO f. Current Enlistment Date/Term: 9 April 2013/18 weeks (Ordered to active duty) g. Current Enlistment Service: 6 months, 28 days h. Total Service: 9 months, 8 days i. Time Lost: None j. Previous Discharges: ARNG, 130129-130408, NA (concurrent service) k. Highest Grade Achieved: E-1 l. Military Occupational Specialty: None m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army National Guard (ARNG) on 29 January 2013, for a period of 8 years. He was 22 years old at the time of entry and a high school graduate. He was ordered to active duty on 9 April 2013, for 18 weeks of initial training. His record is void of any significant acts of valor and achievement. He completed 6 months and 28 days of active duty service and 9 months and 8 days of creditable military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458 (Charge Sheet) which indicates that on 22 October 2013, the applicant was charged with the following offenses: a. engaging in sexual contact by grabbing the buttocks causing bodily harm and unlawfully poking the sides of PVT H between15 July 2013 and 14 August 2013, b. engaging in sexual contact by grabbing and rubbing the breasts of, pushing his groin into the groin area of, kissing her neck and jaw line of, and grabbing her waist from behind and pulling the buttocks into his groin of PVT T, causing bodily harm upon her on 12 October 2013 and, c. failing to obey a lawful general regulation by wrongfully entering the sleeping area of a Soldier of the opposite sex on 12 October 2013. 2. On 25 October 2013, 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 did not submit a statement on his own behalf. The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge. 3. On 1 November 2013, 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 6 November 2013, with a characterization of service of under other than honorable conditions and transferred to the Indiana Army National Guard. 5. The applicant’s record of service shows no record of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. DA Form 4187 (Personnel Action), dated 4 December 2013, reflects a request to have the applicant released from attachment and discharged from the Indiana Army National Guard (INARNG) with an uncharacterized characterization of service. 2. One counseling statement, dated 4 November 2013, for referral to the Reserve Component Liaison Officer. 3. DA Form 458 (Charge Sheet), dated 22 October 2013. 4. CID Report, dated 24 September 2013, reflects the applicant was the subject of an investigation for abusive sexual contact and assault. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 293, dated 12 May 2014, NGB Form 22, DD Form 214, POST-SERVICE ACTIVITY: The applicant did not provide any in support of his application. REGULATORY AUTHORITY: 1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 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. Although an honorable or general discharge is authorized, a discharge UOTHC 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. 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. 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 "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of his characterization and a change to the reentry code was carefully considered. However, after examining the applicant’s record of service, the issues and documents 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 requests a change to the characterization of his service and reentry code in order to rejoin the Army. However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service. Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 5. Therefore, the reason and 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: 1 May 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) AR20140008650 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1