IN THE CASE OF: Mr. BOARD DATE: 8 May 2015 CASE NUMBER: AR20140009311 ___________________________________________________________________________ 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 characterization from general, under honorable conditions to honorable. 2. The applicant states, in effect, his discharge was inequitable because it was based on an isolated incident during more than five years of service with no other adverse action. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 15 March 2011 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: F, Forward Support Co, 2-5th Cavalry Regiment, Fort Hood, TX f. Current Enlistment Date/Term: 4 July 2007, 5 years g. Current Enlistment Service: 2 years, 11 months, 19 days h. Total Service: 4 years, 8 months, 4 days i. Lost time: 267 days j. Previous Discharges: RA (051019-070703)/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 91B10, Wheeled Vehicle Mechanic/11C10, Indirect Fire Infantryman m. GT Score: 90 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq x2 (060627-070913), (091117-100126) q. Decorations/Awards: ARCOM, AGCM, NDSM, ICM-W/3CS, GWOTSM, ASR, OSR, CIB r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 October 2005, for a period of 3 years and 18 weeks. He was 19 years old at the time of entry and a HS Graduate. He was trained in and awarded military occupational specialty (MOS) 11C10, Indirect Fire Infantryman. He reenlisted on 4 July 2007, for a period of 5 years and he was 20 years old. He was subsequently awarded military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic. His record also shows he served a combat tour, earned several awards including an ARCOM, AGCM and a CIB; and he achieved the rank of SPC/E-4. He was serving at Fort Hood, TX when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 26 February 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense. Specifically for the following offenses: a. wrongfully having sexual intercourse with Ms. K.P.K, a married woman not his wife between (100126-100909),and b. failing to go at the time prescribed to his appointed place of duty x 3 (100827, 100805, 100603). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions characterization of service and advised the applicant of his rights. 3. On 28 February 2011, the applicant was afforded the opportunity to consult with legal counsel and waived the opportunity to do so, he was advised of the impact of the discharge action, and did not indicate if a statement was or was not submitted 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 a general, under honorable conditions discharge. 4. On 3 March 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was discharged from the Army on 15 March 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s record of service indicates 267 days of time lost; category of time lost could not be determined from the available record. The period of lost time was from 10 December 2008 until 2 September 2009; the mode of return is unknown. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A FG Article 15, dated 10 November 2010, for wrongfully having sexual intercourse with Ms. K.P.K, a married woman not his wife between (100126-100909); and failing to go at the time prescribed to his appointed place of duty x 3 (100827, 100805, 100603); the punishment consisted of a reduction to E-1, forfeiture of $723 pay, and extra duty for 45 days. 2. The applicant received several negative counseling statements, dated 17 June 2010 and 8 September 2010, for failing to report and lying to a NCO. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and a DD Form 149. POST-SERVICE ACTIVITY: The applicant did not provide any information with his applications. 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, and the applications he submitted, 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 (serious offense), the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15 and several negative counseling statements. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 4. The applicant contends his discharge was inequitable because it was based on an isolated incident during more than five years of service with no other adverse action. The service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 5. The records show the proper discharge and separation authority procedures were followed in this case. 6. 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: 8 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) AR20140009311 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1