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ARMY | BCMR | CY2003 | 2003086738C070212
Original file (2003086738C070212.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 09 DECEMBER 2003
         DOCKET NUMBER: AR2003086738


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

Mr. Carl W. S. Chun Director
Mr. Kenneth H. Aucock Analyst


The following members, a quorum, were present:

Mr. Mark D. Manning Chairperson
Mr. Raymond J. Wagner Member
Ms. Eloise C. Prendergast Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE :

1. The applicant requests that his commission be restored so that he can serve as an officer on active duty or in the Reserve components, or that that his discharge under honorable conditions (general) be upgraded to honorable.

2. The applicant states, in effect, that he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), which was sufficient punishment for his misconduct. His elimination from the Army subsequent to that punishment was unjust. He states that he has "rehabilitated my integrity and transformed his personality to earn a second chance." He served honorably since his punishment. However, and notwithstanding the pleas on his behalf from various officers and noncommissioned officers (NCOs), and inquiries from Members of Congress (MC), he was eliminated from the Army. The Fort Lewis commander started that he acted based on recommendations from his chain of command, and that if he [the applicant] had spoken with him earlier, he would have stopped the paperwork [elimination action]. The commander then stated that it was too late for him to intervene. He complimented him [the applicant] on his character, integrity, leadership potential, and values, but said it was too late for him to do anything. He requests reinstatement of his commission so he can continue his career in the military. He has worked hard. One miscue should not ruin his career.

3. The applicant provides a copy of the order indicating his discharge date of 7 March 2003; a copy of the message indicating approval of his elimination from the Army; a copy of his 7 March 2003 DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of his General Discharge Certificate; a copy of a 2 December 2002 memorandum to the Commanding General, Headquarters I Corps and Fort Lewis, in which he provided a rebuttal to the elimination action; a copy of the record of his nonjudicial punishment; copies of seven statements of support from officers, noncommissioned officers, and a civilian official, all dated in either August or October 2002, and all of which attest to the applicant's good character, attitude, or duty performance; a copy of a statement from the Nassau County (New York) Police Department, dated 3 September 2002, certifying that the applicant did not appear on their criminal records; copies of two inquiries on his behalf from Members of Congress; a copy of a receipt showing that he paid administrative costs (related to his shoplifting); and copies of numerous certificates showing completion of training, recognition of excellence and achievement, to include a certificate showing award of the Army Achievement Medal.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Army Reserve for eight years as a cadet on 28 August 2000, receiving a 2-year ROTC (Reserve Officer Training Corps) scholarship. He was commissioned a second lieutenant on 4 May 2002, assigned to Fort Stewart, Georgia, with temporary duty at Fort Lewis, Washington commencing on 15 May 2002.

2. A 27 July 2002 serious incident report shows that the applicant was apprehended by military police and post exchange security on 26 July 2002 for shoplifting.

3. On 9 August 2002 the applicant received nonjudicial punishment for larceny and for conduct unbecoming an officer and a gentleman.

4. On 12 February 2003 the Commander, Total Army Personnel Command (PERSCOM) informed the Commander, I Corps and Fort Lewis, that the Deputy Assistant Secretary of the Army (Army Review Boards) approved the elimination of the applicant, and requested that he be discharged under honorable conditions with a General Discharge Certificate.

5. The applicant was discharged on 7 March 2003, under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct. He had 9 months and 23 days of service.

6. Army Regulation 600-8-24, chapter 4, provides for elimination of officers from the Army, and states in pertinent part, "An officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer's patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or can not maintain those standards will be separated."

7. Paragraph 4-2 of that regulation states, in pertinent part that elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interest of national security, to include acts of personal misconduct and conduct unbecoming an officer. An officer approved for involuntary separation by the Assistant Secretary of the Army (Manpower and Reserve Affairs) will be separated accordingly.

DISCUSSION AND CONCLUSIONS:

1. The applicant does not dispute the appropriateness or the accuracy of the discharge proceedings. Even so, absent evidence to the contrary, it is presumed that his elimination proceedings were conducted in accordance with the law and with the regulation.

2. The applicant violated his commission and the trust placed in him. His elimination from the Army was not unjust as the applicant contends, but was entirely fitting. The character of his discharge is proper. Restoring his commission is unwarranted.

3. Neither the applicant's statement of his honorable service (since his misconduct), his professions of his new found integrity and change of personality, nor the statements of support on his behalf, either individually or in sum, warrant upgrading his discharge; and by the same token, restoring his commission so that he can serve as an Army officer. The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__MDM__ __RJW__ __ECP__ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  ____Mark D. Manning______
                  CHAIRPERSON




INDEX

CASE ID AR2003086738
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20031209
TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR . . . . .
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 110.00
2.
3.
4.
5.
6.


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