1. APPLICANT’S NAME: a. Application Date: 17 February 2014 b. Date Received: 8 May 2015 c. Counsel: Yes 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant, through his counsel, requests full reinstatement into the Army at pay grade E-7 effective the date of his separation on 27 March 2013; added back to the Master Sergeant promotion selection list and promoted to E-8; full back pay and active duty benefits (leave days, etc.) from the date of separation to present; and removal of the general officer memorandum of reprimand, dated 23 February 2012. In the alternative, the applicant requests his DD 214, block 24 be changed to Honorable; block 25 be changed to “AR 635-200, PARA 4-2”; block 26 be changed to “MBK”; block 27 be changed to “1”; block 28 changed to “Release from active duty upon termination of enlistment”; and, removal of the general officer memorandum of reprimand, dated 23 February 2012. Counsel contends the applicant should never had been brought to an administrative separation board. There was no substantial proof the applicant committed adultery, and in fact, the statement by the attending police officer indicates otherwise. Even if so, this action would not be service discrediting. The applicant did not commit aggravated assault against any female. The females were trespassing on the home of the applicant and his wife. There is no civilian conviction to corroborate this; in fact, the civilian charge was dismissed by a competent court of authority. Without this charge, there is no "serious offense." The applicant did not make a false official statement to anyone regarding the civilian incident of December 21, 2011. The fact is the two female Soldiers were not welcome in his residence, and he only had them come inside at the direction of his spouse. Once the two female Soldiers continued on with their accusations of adultery, their degree of "unwelcomeness" increased exponentially. Without this charge, there is no "serious offense." The applicant was a career Soldier, and has a history of being a consistent leader and strong performer. The applicant was awarded the Bronze Star for "exceptionally meritorious service," and his "exceptional dedication to mission accomplishment, tactical competence, and unparalleled professionalism contributed immeasurably to the unit’s success during combat operations." His command erroneously and unjustly separated him from the U.S. Army, and wrongfully deprived him of hundreds of thousands of dollars in hard-earned retirement pay and benefits. In a personal appearance hearing conducted at Arlington, VA on 11 April 2016, and by a 3-2 vote, after carefully examining the applicant’s record of service during the period of enlistment under review and hearing his testimony, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade to E-7/SFC. (Board member names available upon request.) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions. b. Date of Discharge: 27 March 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 19 September 2012 (2) Basis for Separation: The unit commander notified the counsel of initiation of separation action under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct (serious offense) for the following offenses: adultery (between about 1 October 2011 and 21 November 2011, aggravated assault on SPC R by pointing a gun at her chest (21 December 2011), and making a false official statement (27 August 2012). (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 31 October 2012 (5) Administrative Separation Board: 13 February 2013 (6) Separation Decision Date/Characterization: 27 February 2013 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 6 October 2010 / Indefinite b. Age at Enlistment/Education/GT Score: 33 / Associate Degree / 113 c. Highest Grade Achieved/MOS/Total Service: E-7 / 92Y10, Unit Supply Specialist / 16 years, 1 month, 28 days d. Prior Service/Characterizations: RA, 30 January 1997- 22 April 1999 / HD RA, 23 April 1999 - 1 July 2001 / HD RA, 2 July 2001 - 1 December 2005 / HD RA, 2 December 2005 - 25 January 2007 / HD RA, 26 January 2007 - 3 October 2010 / HD e. Overseas Service/Combat Service: Panama, SWA / Iraq (6 September 2003 - 13 February 2004, 3 January 2007 - 22 February 2008) f. Awards and Decorations: BSM, MSM, ARCOM-4, AAM-3, PUC, VUA-2, AGCM-4, NDSM, ICM-CS, GWOTEM, GWOTSM, NPDR-3, ASR, OSR, CAB g. Performance Ratings: 1 July 2010 - 23 December 2010, Among the Best 24 December 2010 - 23 December 2011, Among the Best 24 December 2011 - 14 August 2012, Marginal h. Disciplinary Action(s)/Evidentiary Record: A General Officer Memorandum of Reprimand, dated 15 February 2006, for driving while impaired on 4 February 2006. A breath analysis test administered at the time of arrest was refused. Nine negative counseling statements, dated between 2 July 2011 and 12 September 2012, for a domestic violence incident, disrespect to a senior ranking noncommissioned officer, violating pass policy, repeated substandard performance, failure to report incident to the chain of command, repeated substandard performance, order to surrender personally owned weapon, allegations of domestic violence and abuse, initiation of administrative separation, and making false statements. Preliminary Inquiry Investigating Officer’s (IO) findings, dated 27 January 2012, found the applicant not to have violated AR 600-20, paragraphs 4-14 or 4-15; however, his relationship with the two junior Soldiers could be in violation of Article 134. The IO recommended appropriate corrective, administrative, or disciplinary actions be taken as a result of the applicant’s conduct. Montgomery County, Tennessee, 19th Judicial Circuit Court, Court Transcript, dated 22 February 2012. A General Officer Memorandum of Reprimand, dated 23 February 2012, for threatening a junior enlisted Soldier by pointing a firearm at her chest and having an inappropriate sexual relationship with the two junior Soldiers while being married. DA Form 3822-R (Report of Mental Status Evaluation), dated 4 September 2012, reflects that the applicant had a clear and normal thought process and was mentally responsible. Administrative Separation Board (ASB) Proceedings Findings and Recommendations Worksheet, dated 13 February 2013, reflect the applicant was found to have committed adultery, assaulted SPC R, and made a false official statement in a memorandum. The ASB determined that the applicant did not commit aggravated assault on SPC R. The ASB recommended the applicant be separated from the service with an under other than honorable conditions discharge. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: The counsel provided a DD Form 293, dated 17 February 2014, and a DD Form 214 covering the period of service under review. The counsel provided the following documents pertaining to the applicant’s separation: The Law Center Petition, dated 5 May 2015, in support of the applicant’s request to the Army Review Boards Agency with the following enclosures: DD-214 (with continuation sheet), dated 27 March 2013. Army Commendation Medal certificate. Partial transcript from civilian court. Transcript of text messages. Notice of Proposed Administrative Separation Board and Acknowledgment. Recommendation for Administrative Separation. Chain of Command recommendations for Administrative Separation. Administrative Separation Board Appointing Order and Notification to Applicant. Administrative Separation Board Findings and Recommendations Worksheet. Medical report concerning hernia repair. Standard Form 600 of December 2009. Dismissal of civilian charges and expungement of record. Polygraph Testing results from Charles R. Scott Investigative Services. Affidavit of Officer Thomas Walker. Enlisted Evaluations. Certificate of Award - Bronze Star Medal. Estimated Retirement Benefits. 6. POST SERVICE ACCOMPLISHMENTS: None stated. 7. REGULATORY CITATION(S): 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. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 8. DISCUSSION OF ISSUE(S): The applicant, through his counsel, requests full reinstatement into the Army at pay grade E-7 effective the date of his separation on 27 March 2013; added back to the Master Sergeant promotion selection list and promoted to E-8; full back pay and active duty benefits (leave days, etc.) from the date of separation to present; and removal of the general officer memorandum of reprimand, dated 23 February 2012. In the alternative, the applicant requests his DD 214, block 24 be changed to Honorable; block 25 be changed to “AR 635-200, PARA 4-2”; block 26 be changed to “MBK”; block 27 be changed to “1”; block 28 changed to “Release from active duty upon termination of enlistment”; and, removal of the general officer memorandum of reprimand, dated 23 February 2012. The applicant’s record of service, the issues and documents submitted with his application were carefully reviewed. 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. Counsel on behalf of the applicant, requests full reinstatement into the Army at pay grade E-7 effective the date of his separation; added back to the Master Sergeant promotion selection list and promoted to E-8; full back pay and active duty benefits (leave days, etc.) from the date of separation to present; and removal of the general officer memorandum of reprimand, dated 23 February 2012. However, the applicant’s requested changes do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records. The counsel requests narrative reason change and a reentry code change. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3. There are no basis upon which to grant a change to the reason or to the RE code. An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. Counsel contends the applicant’s command erroneously and unjustly separated him from the U.S. Army. The applicant should never had been brought to and administrative separation board. Further, he did not commit adultery or make a false statement. There was no substantial proof the applicant committed adultery, and in fact, the statement by the attending police officer indicates otherwise. Even if so, this action would not be service discrediting. However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Counsel contends the applicant was a career Soldier, and has a history of being a consistent leader and strong performer. He was awarded the Bronze Star Medal for meritorious service in combat. The applicant is to be commended for his accomplishments. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional document(s): Evidence binder 2. The applicant presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. 9. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General, Under Honorable Conditions c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore Grade to: E-7/SFC AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: AWOL - Absent Without Leave GD - General Discharge NIF - Not in File SPCM - Special Court Martial BCD - Bad Conduct Discharge HS - High School OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 HD - Honorable Discharge OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status IADT – Initial Active Duty Training RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable SCM - Summary Court Martial ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150008482 1