RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            10 AUGUST 2006
      DOCKET NUMBER:   AR20060001339


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Peguine Taylor                |     |Member               |

      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, in two separate applications that his narrative
reason for separation, separation authority, and separation code be changed
to a reason, authority and code that reflect separation pay entitlements.
He also requests that he be compensated from 3 June 2004 (the date of his
discharge) to 7 October 2005 (the date of the Army Discharge Review Board's
(ADRB) decision).

2.  The applicant states that on 3 June 2004, he was ordered discharged
from the Army and his State Army Reserve National Guard (ARNG) unit for
misconduct while on active duty orders.  He states that the action was
requested through the Department of the Army by an Administrative
Separation Board hearing, and that the ADRB later determined that his
narrative reason for separation was inequitable due to mitigating
circumstances surrounding his discharge.  He states that the ADRB upgraded
his discharge from general to honorable, changed his narrative reason, his
separation authority, his separation code, and his reentry (RE) code.  He
goes on to state that the State Reserve ARNG Headquarters has refused to
revoke the order discharging him citing that the only authority that can
void his discharge orders is the Headquarters, Department of the Army.  He
states that all of his official documents were changed to reflect the
changes recommended by the ADRB; however, he has been assigned to the
Retired Reserve since 3 June 2004.

3.  The applicant goes on to state, that the ADRB's action has not resolved
the fact that he would have reached the expiration of his term of service
on 19 December 2007, and that he has already lost 19 months of service time
and drill pay due to unjust actions.  He states that he will lose the
additional 2 years remaining service time, and that he has been assigned to
the Retired Reserve for approximately 2 years now.  He states that he will
never get back all of his lost service time and it is sad that it would
come to this after 31 years with an organization.  The applicant states
that changing his narrative reason for separation from misconduct to
convenience of the Government removed one injustice and added another and
is a contradiction of his RE-1 code, which reflects that he is qualified to
reenter the Army.  He states that he has been separated for the convenience
of the Government because no other provision of Army Regulation 635-200
applies and, early separation is clearly in the best interest of the Army.
He concludes by stating that considering the fact that he should never have
been discharged at all, if he is to remain discharged, then there is a need
to change his narrative reason for separation to reflect that he served
honorably for the past 31 years.

4.  The applicant provides in support of his application, electronic mail
forwarded to him from the Defense Finance and Accounting Services, dated 17
January 2006, informing him that his separation code and narrative reason
for separation does not authorize separation pay for the United States Army
personnel.

CONSIDERATION OF EVIDENCE:

1.  The available records show that the applicant was a member of the New
York Army National Guard (NYARNG), assigned to the 719th Transportation
Company, Camp Arifjan, Kuwait, on 30 June 2003, when he was counseled for
being disrespectful towards a commissioned officer; failure to obey an
order or regulation; reckless endangerment; and willfully disobeying a
commissioned officer.  During the counseling, the applicant was informed
that if his conduct continued, the command may initiate separation action
under the provisions of Army Regulation 635-200, for unsatisfactory
performance, misconduct, or personality disorder.  He was also informed
that he could receive an honorable, general, or other than honorable
conditions discharge if separated for any of the reasons previously stated.

2.  The applicant acknowledged receipt of the counseling statement by
indicating that he disagreed with the information contained in the
statement, and that he would be submitting a rebuttal to the counseling
statement.  Any statement that he may have submitted regarding his
counseling statement is unavailable for review by the Board at this time.

3.  On 15 September 2003, charges were preferred against the applicant for
wrongfully approaching a female , a person subject to his order, who was
then the 2nd platoon sergeant, while she was lying on her cot and asking
"What's up, T---, you lonely?" or words to that effect, a deliberate
comment of sexual nature; and for being derelict in the performance of his
duties by, while operating his vehicle on the main supply route in Iraq,
willfully leaving the convoy and traveling the main supply route solely in
his vehicle, thereby undermining the safety of the Soldiers in the convoy,
the Soldier in his vehicle, and his own safety.

4.  The Charge Sheet also shows that the applicant was also charged with
maltreating a female Soldier, a person subject to his orders, who was then
the 2nd platoon sergeant, by climbing onto her medium truck tractor at
night while she was sleeping, and offered her a massage after she rejected
the offer from him earlier; and with maltreating a female , a person
subject to his order, who was then the 2nd platoon sergeant, by placing his
fingers in her vagina.

5.  The available records fail to show exactly what happened in regards to
the applicant's pending charges.  However, the records do show that on
31 October 2003, he was notified that he was being recommended for
discharge, under the provisions of Army Regulation 635-200, chapter 14, for
commission of serious offenses.  The commander cited abuse of his rank and
leadership position by sexually harassing female junior enlisted Soldiers
in his charge, sexually assaulting by digitally penetrating a junior
enlisted Soldier in his charge, and dereliction of duty during a time of
war while on convoy in Iraq.  The commander stated that he was recommending
the issuance of an other than honorable characterization of service.

6.  He acknowledged receipt of the notification by submitting a rebuttal
memorandum in his own behalf in which he stated that the sworn statements
that had been written by junior enlisted Soldiers in his charge made no
reference to being sexually harassed nor had he received a developmental
counseling form to correct his alleged behavior.  He stated that the sworn
statements did reflect that he as their platoon sergeant showed concern for
their well being and nothing else. He stated that the alleged sexual
assault had not been proven, founded or unfounded and that the allegations
of his being derelict in the performance of his duty during war time was an
over statement because the convoy was on 17 June through 22 June 2003,
which was long after the President declared an end to the war.  He
concluded his rebuttal by stating that he was never afforded an opportunity
to meet with his company commander to address the issues in his 30 June
counseling.

7.  A board of officers convened on 22 November 2003 to determine whether
the applicant should be separated from the Army under the provisions of
Army Regulation 635-200, chapter 14, for commission of serious offenses.
Numerous testimonies were given during the board proceedings and the
applicant appeared and was represented by counsel.  At the end of the board
proceedings, the board found that the applicant did sexually harass junior
enlisted Soldiers, did not sexually assault a junior enlisted Soldier, and
was derelict in his duties by leaving the convoy.  The board recommended
that the applicant be separated from the Army with a general discharge and
that he not be offered probation and rehabilitation with a conditional
suspension of the discharge.

8.  On 25 November 2003, the applicant submitted an appeal to the findings
and recommendations made by the board of officers to the commanding general
(CG) of the 143rd Transportation Command.  A review of the available
records fails to show whether the CG ever responded to the applicant's
appeal. However, in a memorandum addressed to the applicant dated
13 December 2003, the CG stated that he was responding to a letter that he
received from the applicant dated 6 November 2003, complaining regarding
the Judge Advocate for the 32nd Transportation Group.  In the memorandum
the CG stated that the applicant had four complaints against the Judge
Advocate and that he would take no action in response to the applicant's
request.  The CG stated that while it is true that the applicant was placed
in pretrial confinement, when the military magistrate reviewed the case,
the magistrate promptly order his release, which was not abuse of the
system.  The CG stated that Army Regulation 600-20 provides remedies to the
victims of discrimination and sexual harassment, and that the regulation
gave him no special rights, being accused of sexual impropriety.  The CG
went on to state that he could not understand the applicant's complaints
that his counseling statement was improperly handled and that the Judge
Advocate changed the wording of the sworn statement and Army Regulation 600-
20, as he failed to submit a copy of the document in question.  The CG
concluded by stating that any Soldier who feels that he has been wronged
has the right to seek redress from the command.  The CG stated that he
considered the applicant's letter as a request for redress and he deemed
that no further action was appropriate.

9.  The appropriate authority approved the findings and recommendations
made by the board of officers.  Accordingly on 3 June 2004, the applicant
was discharged under the provisions of Army Regulation 635-200, paragraph
14-12c, for misconduct, due to his commission of a serious offense.  He was
furnished a general discharge.  His Certificate of Release or Discharge (DD
Form 214) shows that at the time of his discharge he had completed over 30
years of active and inactive service.  His DD Form 214 also shows that he
was assigned a JKQ (misconduct) separation code and a RE-3 code.

10.  On 15 February 2005, the ADRB determined that the characterization of
his service was too harsh and that the misconduct was mitigated by service
of sufficient length and merit to warrant an upgrade of the applicant's
discharge.  Therefore, the ADRB upgraded his general discharge to a fully
honorable discharge.

11.  On 3 October 2005, as a result of a personal appearance, the ADRB
found that based on mitigating circumstances surrounding the applicant's
discharge, the narrative reason for separation was then inequitable.
Therefore, the ADRB voted to change his narrative reason for separation to
Secretarial Authority, which constituted a change of his separation
authority from Army Regulation 635-200, chapter 14-12c to Army Regulation
635-200, paragraph 5-3 (Secretarial Authority); a change of his separation
code from JKQ to JFF (Secretarial Authority), and a change of his RE code
from RE-3 code to RE-1.

12.  Army Regulation 635-200 establishes policy and provides guidance for
the separation of enlisted personnel.  It provides that separation under
paragraph 5-3 is the prerogative of the Secretary of the Army.  Secretarial
plenary separation authority is exercised sparingly and seldom delegated.
Ordinarily, it is used when no other provision of this regulation applies,
and early separation is clearly in the best interest of the Army.
Separations under this paragraph are effective only if approved in writing
by the Secretary of the Army or the Secretary's approved designee as
announced in updated memorandums.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant's administrative separation was
accomplished in compliance with applicable regulations with no indication
of procedural errors which would tend to jeopardize his rights.

2.  During the applicant discharge process a board of officers convened to
determine whether he should be separated from the service.  The board found
that he did not sexually assault a junior enlisted Soldier; however, that
board found that he did sexually harass junior enlisted Soldiers, and that
he was derelict in his duties by leaving the convoy.

3.  The applicant contentions have been noted.  However, the fact that the
ADRB upgraded his discharge, changed his narrative reason and authority for
discharge, and furnished him different separation and RE codes does not
mean that he was not appropriately separated from the Army.  He was
separated based on the findings and recommendations of the board of
officers and the ADRB upgraded his discharge based on his overall record of
service and his length of service.  The ADRB's actions are not verification
of an illegal or inappropriate separation.

4.  The ADRB changed his reason and authority for discharge and his
separation code to show his reason for separation as Secretarial Authority
which is appropriate since his upgraded discharge was approved by the
Secretary of the Army or the Secretary's approved designee.  The fact that
he believes he is entitled to separation pay as a result of his newly
assigned narrative reason for separation and separation code is
insufficient justification to warrant the relief requested.




5.  The applicant’s request for compensation from the date of his discharge
to the date of the ADRB's decision is without merit.  He is not entitled to
any back pay based on his belief that he was erroneously discharged.  The
applicant was not erroneously discharged.  He was discharged in accordance
with the recommendation made by the board of officers.  It does not appear
that the applicant is entitled to any additional relief in his case.

6.  In order to justify correction of a military record the applicant must
show 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.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____CG _  ____JG _  ____PT__  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.





                                  _____Curtis Greenway_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001339                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/06/03                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |PARAGRAPH 5-3/SEC AUTHORITY             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  189  |110.0000/SEPARATION DOCUMENTS           |
|2.  191                 |110.0200/REASON AND AUTHORITY           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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