IN THE CASE OF: BOARD DATE: 20 October 2014 CASE NUMBER: AR20140011670 ___________________________________________________________________________ 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 an upgrade of his under other than honorable conditions discharge to honorable, or general, under honorable conditions discharge. 2. The applicant states, in effect, he is requesting an upgrade of his discharge in order to get assistance with school and job prospects. He states he has grown between December 2009 and now and would appreciate the opportunity to uplift his community and maximize his production as a positive member of society. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 1 July 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 2 December 2009 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: 210th Brigade Support Battalion, Fort Drum NY f. Current Enlistment Date/Term: 19 July 2007/6 years g. Current Enlistment Service: 1 year, 8 months, 20 days h. Total Service: 1 year, 8 months, 20 days i. Time Lost: 234 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 88M10, Motor Transport Operator m. GT Score: 109 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, ASR r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: NIF u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 July 2007, for a period of 6 years. He was 18 years old at the time of entry and a high school graduate. His record is void of any significant acts of valor and achievement. He completed 1 year, 8 months, 20 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Drum, New York. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 30 January 2009, the applicant was charged with the following offenses: a. engaging in a lewd act to wit: intentionally grabbing the hand of Miss C. and placing it on his penis, with Miss C., a child who had not attained the age of 16 years, b. taking indecent liberties in the physical presence of Miss C., a female under 16 years of age, by saying “Give me oral sex,” or words to that effect, with intent to gratify the sexual desire of the accused, c. engaging in sexual contact, to wit: kissing the nipples, breast, upper thigh, and mouth of Miss C., a child who had attained the age of 12 years, but had not yet attained the age of 16 years, d. engaging in sexual contact, to wit: touching the breasts and vagina of Miss C., a child who had attained the age of 12 years, but had not attained the age of 16 years, e. with intent to deceive, make to Special Agent D., official statements, to wit: “Miss C. never asked me to stop” and “Miss C. told me she was 18 years of age,” or words to that effect, which statements were totally false and known by the applicant to be false, and f. with intent to deceive, make to Special Agent S., an official statement, to wit: “Miss C. never said no,” or words to that effect, which statement was totally false and know by the applicant to be false. 2. On 27 February 2009, the applicant entered into a pretrial agreement and agreed to plead not guilty to Charge 1 and its specifications and guilty to Charge II and its specifications. 3. On 2 April 2009, the applicant participated in a general court-martial. He was sentenced to a reduction to the grade of E-1, confinement for three years, and discharged from the service with a bad conduct discharge. 4. On an unknown date, 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. The record is void of the applicant’s request. 5. On 24 November 2009, the separation authority disapproved the guilty findings and the sentence adjudged against the applicant and approved the Chapter 10 request. He dismissed the charges and specifications; and directed the applicant’s discharge with a characterization of service of under other than honorable conditions and reduction to the lowest enlisted rank. 6. The applicant was discharged from the Army on 2 December 2009, with a characterization of service of under other than honorable conditions. 7. The applicant’s record of service indicates 234 days of time lost for being confined as a result of a general court-martial. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Reduction Orders Number 244-15, dated 1 September 2009, reduced the applicant to the lowest enlisted grade, effective 16 April 2009. 2. Two DA Forms 4187 (Personnel Action), dated 1 September 2009 and 30 November 2009, reflects the applicant’s duty status changed from present for duty (PDY) to confined by military authorities and from confined by military authorities to PDY. 3. DA Form 4430 (DA Report of Result of Trial), dated 2 April 2009, reflects the applicant was found guilty of two specifications under Charge I, violation of Article 120, UCMJ and two specifications under Charge II, violation of Article 107, UCMJ. 4. DA Form 458 (Charge Sheet), dated 30 January 2009, reflects the applicant was charged with four specifications of violating Article 120 and two specifications of violating Article 107 of the UCMJ. 5. A pretrial agreement, dated 27 February 2009, reflects the applicant agreed to plead not guilty to Charge I, but guilty of a lesser included offense of assault, consummated by a battery upon a child under 16, violation of Article 128, and its specifications, and plead guilty to Charge II and its specifications. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 26 June 2014. 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 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 his characterization 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 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 an upgrade of his discharge would allow for assistance with job prospects and school. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 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. 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: Personal Appearance Date: 20 October 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: None 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: 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) AR20140011670 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1