1. APPLICANT’S NAME: a. Application Date: 21 July 2015 b. Date Received: 8 September 2015 c. Counsel: Yes 2. REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason and RE code change. Counsel states, the appellant had good service prior to the incident which led to his discharge. Counsel states, the applicant was following orders of his immediate supervisor and voluntarily came forward and reported his actions to a friend. Counsel, states others involved in the misconduct received less or equal consequences though they had more culpability than the applicant. Counsel contends others involved in the incident have received relief from the Board in the form of an upgrade, and therefore, based on this and the facts outlined in his brief, warrants an upgrade of the discharge. Further, counsel contends the applicant’s misconduct was minor in nature and an isolated incident. In a personal appearance hearing conducted at Arlington, VA on 25 April 2016, and by a 4-1 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request.) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: In Lieu Of Trial By Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 7 May 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 1 December 2006, charges were preferred against the appellant. (2) Basis for Separation: The applicant was informed of the following reasons: Charge Sheet: Charge I: Violation of the UCMJ, Article 91. The Specification: The appellant, did, at or near Forward Operating Base Sykes, Iraq, between on or about 1 July 2006 and on or about 30 July 2006, conspire with Staff Sergeant (E-6) D. E., U.S. Army, Sergeant (E-5) B. S., U.S. Army, Specialist (E-4) M. H., U.S. Army to commit an offense under the Uniform 1 Code of Military Justice, to wit: shipping out of the Multi-National Corps-Iraq Area of Responsibility for personal retention a weapon obtained or acquired by a means other than official issue, in violation of paragraph L (1), General Order Number 1, 101st Airborne Division (Air Assault), dated 11 May 2006, and in order to effect the object of the conspiracy the appellant did transport firearms and explosives to Contingency Operating Base Speicher, Iraq and stored them in his Containerized Housing Unit. Charge II: Violation of the UCMJ, Article 103. The Specification: The appellant, U.S. Army, did, at or near Contingency Operating Base Speicher, Iraq, between on or about 1 July 2006 and on or about 31 July 2006, fail to give notice and tum over to proper authority without delay certain abandoned property which had come into his possession, to wit: four firearms, of a value more than $500. Charge III: Violation of the UCMJ, Article 108. The Specification: The appellant, U.S. Army, did, at or near Contingency Operating Base Speicher, Iraq, between on or about 1 July 2006 and 30 July 2006, without proper authority, dispose of by placing into a MIL VAN container, an explosive of a value less than $500, military property of the United States. Charge IV: Violation of the UCMJ, Article 134. The Specification: The appellant, a married man, did, at or near Forward Operating Base Sykes, Iraq, between on or about 12 December 2005 and on or about 30 July 2006, wrongfully have sexual intercourse with an unknown female Soldier, a woman not his wife. Additional Charge: The Specification: The appellant, U.S. Army, did, at or near Contingency Operating Base Speicher, Iraq, between on or about 1 July 2006 and on or about 30 July 2006, fail to obey a lawful general order, to wit: Paragraph 5 (a), General Order Number 1, 101st Airborne Division (Air Assault), dated 11 May 2006, by wrongfully possessing privately owned firearms. On 10 January 2007, the appellant submitted his conditional request for discharge in lieu of trial by court-martial. The appellant agreed to testify against other Soldiers involved in the same incident, contingent upon approval of his request for discharge in lieu of trial by court-martial. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 10 January 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date/Characterization: 21 February 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 17 April 2002 / 4 years (on 1 December 2006, the applicant extended his service by 6 months, giving him a new ETS of: 2 June 2007) b. Age at Enlistment/Education/GT Score: 26 / 2 years college / 125 c. Highest Grade Achieved/MOS/Total Service: E-5 / 68W2P, Health Care Specialist / 12 years, 6 months, 26 days d. Prior Service/Characterizations: ARNG, 31 March 1994 - 20 June 1995 / NA ADT, 21 June 1995 - 10 October 1995 / HD ARNG, 11 October 1995 - 1 March 1996 / HD USARCG, 2 March 1996 - 16 April 2002 / NA e. Overseas Service/Combat Service: Korea, SWA / Kuwait / Iraq (19 November 2005 - 14 September 2006) f. Awards and Decorations: AM, ARCOM-2, AAM-2, ASUA, AGCM, NDSM-2, GWTSM, KDSM, ICM, ASR, OSR, CAB g. Performance Ratings: September 2004 - August 2005, Among The Best 1 September 2005 - 31 August 2006, Marginal h. Disciplinary Action(s)/Evidentiary Record: Charge Sheet described at the preceding paragraph 3c(2). i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; a copy of his DD Form 214; and, a brief from counsel with all listed enclosures, dated 31 August 2015. 6. POST SERVICE ACCOMPLISHMENTS: Serves as the Chief Operating Officer for a large company. Uses his Army experience to mentor, teach and help employees and is committed to their personal success within his organization. 7. REGULATORY CITATION(S): Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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. AR 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. The SPD Code/RE Code Cross Reference Table shows a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. 8. DISCUSSION OF ISSUE(S): The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable and a narrative reason and RE code change. The applicant’s record of service, the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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. Counsel states, the applicant was following orders of his immediate supervisor and voluntary came forward and reported his actions to a friend. However, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record he ever sought such assistance before committing the misconduct which led to the separation action under review. Moreover, records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge. Therefore, there is no basis for changing the applicant's RE Code and the applicant is no longer eligible for reenlistment. Further, the record show that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. Counsel states, the applicant had good service prior to the incident which led to his discharge. The applicant’s service accomplishments and the quality of his service prior to the incidents which caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. Counsel, states, others involved in the misconduct received less or equal consequences though they had more culpability than the applicant. 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. The character of the applicant’s discharge is commensurate with his overall service record. Counsel contends, others involved in the incident have received relief from the Board in the form of an upgrade, and therefore, based on this and the facts outlined in his brief, warrants an upgrade of the discharge. However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state each case must be decided on an individual basis considering the unique facts and circumstances of the particular case. Counsel contends, the applicant’s misconduct was minor in nature. However, the service record indicates the applicant was charged with many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant’s many charges of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. Counsel contends, the event which caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The third party statements provided with the application speak highly of the applicant’s performance. They recognize the applicant’s good conduct either before the incident, which led to his discharge, or after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. None of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 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. 9. BOARD ACTION DIRECTED: a. Issue a New DD-214: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore Grade to: NA 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 AR20150015209 1