MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 September 2001
         DOCKET NUMBER: AR2001055271

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Luther L.Santiful		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that the authority and narrative reason for separation contained in his separation document (DD Form 214) be changed.

APPLICANT STATES: In effect, that he was never given the opportunity to agree or disagree with the information entered in his separation document. He further indicates that he was only made aware of the “Unacceptable Conduct” entry in block 28 (Narrative Reason for Separation) when the DD Form 214 was processed. He also states that he was advised that he would receive an honorable discharge and that he could continue to serve his country as a captain (CPT) in the United States Army Reserve (USAR), which he found was untrue when he found a unit to serve in. He contends that he served his country honorably and all his actions were justified. In support of his application, he provides a letter to his Member of Congress and signed statements from several third party witnesses.

EVIDENCE OF RECORD: The applicant's military records show:

On 5 May 1995, he was appointed a second lieutenant (2LT) in the USAR and concurrently entered active duty in that status. On 1 July 1999, he was promoted to CPT, which is the highest rank he held while serving on active duty.

On 12 July 1999, the applicant received a Memorandum of Reprimand (MOR) based on his having demonstrated a lack of sound judgement, integrity, and maturity, which seriously compromised his standing as a commissioned officer. This was the result of his leaving his appointed place of duty while serving as the brigade staff duty officer in violation of his written and verbal instructions. The applicant acknowledged receipt of this MOR and elected not to submit a rebuttal statement or documents in his own behalf. The appropriate authority directed that the MOR be filed in the applicant’s Official Military Personnel File (OMPF).

On 30 September 1999, the commanding general (CG) of the Infantry Center at Fort Benning, Georgia, initiated elimination action against the applicant under the provisions of chapter 4, Army Regulation 600-8-24 for unacceptable conduct/ misconduct, moral, or professional dereliction. The CG informed the applicant that he was required to show cause for his retention on active duty, under the provisions of paragraph 4-2, Army Regulation 600-8-24, based on his substandard duty performance and misconduct.

In support of the elimination action, the CG cited the incident outlined in the
12 July 1999 MOR issued to the applicant; four separate incidents of the applicant failing to repair in July 1999; and a counseling statement, dated
21 August 1999, in which the applicant was counseled in regard to his failure to exercise the necessary leadership expected of an officer of his grade and position as the battalion S-3.

In connection with the separation action, the applicant was given the option of submitting his resignation in lieu of elimination under the provisions of chapter 4, Army Regulation 600-8-24. On 4 October 1999, the applicant acknowledged receipt of the CG’s elimination recommendation. After consulting counsel and being informed of the basis for the elimination action against him, he elected to resign in lieu of further elimination proceedings and submitted a resignation request on 28 October 1999.

On 8 February 2000, the Department of the Army Ad Hoc Review Board reviewed the resignation in lieu of elimination request submitted by the applicant and recommended it be accepted and that he be issued an honorable discharge. As a result of this recommendation, on 10 February 2000, the Deputy Assistant Secretary, Army Review Boards, accepted the applicant’s resignation and directed he receive an honorable discharge.

On 16 February 2000, Personnel Command (PERSCOM) released an electronic message to the CG, Fort Benning. It directed that the applicant be advised that his resignation in lieu of elimination was approved and that orders be published directing the applicant’s honorable discharge, under the provisions of chapter 4, Army Regulation 600-8-24, by reason of unacceptable conduct/ misconduct, moral or professional dereliction. The message further stipulated that a Separation Program Designator (SPD) code of BNC (Unacceptable Conduct) be issued based on his sub-standard performance of duty.

Accordingly, the applicant was honorably discharged on 1 March 2000, after completing a total of 4 years, 9 months, and 27 days of active military service. In addition, the DD Form 214 documenting this period of service included the SPD code BNC and the Narrative Reason for Separation of “Unacceptable Conduct” as directed by the appropriate authority.

On 24 August 2001, the Army Discharge Review Board denied the applicant’s request to change the authority and narrative reason for his separation after determining the authority and reason for his discharge were proper and equitable.

Army Regulation 600-8-24 prescribes the policy and procedure for the separation or discharge of all officers on active duty for 30 days or more. Paragraph 4-24 contains the rules governing the processing of officers identified for elimination. It indicates, in effect, that officers pending elimination action may elect to submit a resignation, in lieu of elimination. It also stipulates that once the resignation is approved, PERSCOM will forward appropriate separation instructions.

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Army Regulation 635-5-1 (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. The SPD code of BNC and the corresponding Narrative Reason for Separation “Unacceptable Conduct” were appropriate for the applicant based on the guidance provided in this regulation for officers separated under the provisions of chapter 4, Army Regulation 600-8-24 by reason of misconduct, moral or professional dereliction.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board noted the applicant’s contention that he was not allowed to agree or disagree with the information entered into his DD Form 214 and that he is prevented from serving his country in the Reserve based on the narrative reason for discharge of “Unacceptable Conduct” entered on his DD Form 214. However, it finds these factors do not provide sufficient justification for granting the requested relief.

2. The evidence of record confirms the applicant, after consulting legal counsel, requested to resign in lieu of elimination for misconduct, moral or professional dereliction and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. The authority, narrative reason for separation, and SPD code entered in the applicant’s DD Form 214 were assigned in accordance with the applicable regulations and in view of the circumstances of this case, the Board finds they were and are still appropriate.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

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DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__LLS___ __MHM__ __JTM___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001055271
SUFFIX
RECON
DATE BOARDED	2001/09/06
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2000/03/01
DISCHARGE AUTHORITY	AR 600-8-24 C4
DISCHARGE REASON	Unacceptable Conduct
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 191	110.0200
2.
3.
4.
5.
6.