1. Applicant's Name: a. Application Date: 28 January 2016 b. Date Received: 8 February 2016 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant seeks relief through counsel contending, his discharge was unjust he had no other problems or disciplinary actions before this incident. He has not shown any bad intent or harm to his community since his discharge from the Army and has exhibited great integrity toward his community, volunteering for many nonprofit activities. He was also released from Active Duty with serious health issues, which should have been resolved prior to his discharge. The applicant contends that he was a victim of double standards, hearsay, and mischaracterization. In a records review conducted at Arlington, VA on 10 May 2017, and by a 5-0 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: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 27 January 2009 c. Separation Facts: (1) Date of Notification of Intent to Separate: 22 January 2008 (2) Basis for Separation: The applicant was being charged by the State of North Carolina with two charges of sexual acts with a fourteen year old child and one charge of indecent liberties with a fourteen year old child. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 4 February 2008 (5) Administrative Separation Board: The applicant voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions. On 5 May 2008, the applicant was notified to appear before an administrative separation board and advised of his rights. On 2 June 2008, the Senior Defense Counsel requested on the applicant's behalf that his administrative separation board be rescheduled for after 23 June or 27 June to accommodate the unit's block leave; which the president of the board approved the request. On 9 July 2008, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with characterization of service of under other than honorable conditions. (6) Separation Decision Date / Characterization: On 4 August 2004, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a characterization of service of under other than honorable conditions. 4. SERVICE DETAILS: a. Date / Period of Enlistment: 24 January 2007 / 5 years, 20 weeks / moral waiver (28 December 2006) b. Age at Enlistment / Education / GT Score: 19 / HS Graduate / 86 c. Highest Grade Achieved / MOS / Total Service: E-3 / 92G10, Food Service Operations / 1 year, 1 month, 27 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: A negative counseling statement dated, 7 September 2007, for being arrested for alleged sexual intercourse with a minor. Mental Status Evaluation, dated 31 October 2007, reflects the applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in any administrative proceedings. He met retention requirements of Chapter 3, AR40-501 and was cleared for any administrative actions at this time. i. Lost Time / Mode of Return: 330 days (Civilian confinement, 28 February 2008 to 27 January 2009) j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 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. 8. DISCUSSION OF FACT(S): The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant's record of service and the issues submitted with his application were carefully reviewed. The record confirms 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 of his service below that meriting an honorable or a general (under honorable conditions) discharge at the time of separation. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends that his discharge was unjust because he was never counseled for any behavioral act while performing his duties as a Soldier and he had no other problems or disciplinary actions before this 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 of service. Further, the record of evidence shows that the applicant was counseled by his platoon sergeant for alleged sexual intercourse with a minor. The applicant further contends, he has not shown any bad intent or harm to his community since his discharge from the Army and has exhibited great integrity toward his community, volunteering for many nonprofit activities. The applicant is to be commended for his efforts. However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. The applicant also contends, he was also released from Active Duty with serious health issues, which should have been resolved prior to his discharge. The service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. Moreover, the applicant contends, he was a victim of double standards, hear say, and mischaracterization. However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 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 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 DETERMINATION: In a records review conducted at Arlington, VA on 10 May 2017, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD / RE Code to: No Change e. Restore (Restoration of) Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160003799 2