RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 September 2006
      DOCKET NUMBER:   AR20060004475


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 effect, that his general discharge be
upgraded to honorable, that his Reentry (RE) Code be changed to a “1” and
that the narrative reason for separation be changed to reflect his
“Completion of Required Service.”

2.  The applicant states that he was denied due process by the
administrative discharge procedures and contends that the board considered
improper factors in reaching its decision.

3.  The applicant provides a copy of his report of separation (DD Form
214), a copy of his Enlisted Record Brief (ERB), copy of the Army Discharge
Review Board (ADRB) Case Summary and Directive, a copy of his
administrative separation proceedings to include the transcript of the
administrative board proceedings, a copy of an Equal Opportunity (EO)
Climate Survey, a copy of a Military Police Report and a copy of a civilian
arrest warrant.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge be upgraded to
honorable, that his narrative reason for separation be changed to reflect
the “end of obligated service” and that his RE Code be changed to a code
that would render him eligible for immediate reenlistment.

2.  Counsel states that the applicant’s involuntary separation from the
Army was obtained in a manner that violated his administrative and due
process rights.  He goes on to state that the basis for his separation was
commission of a serious offense; however, the offenses for which he was
accused are not serious offenses and do not constitute an administrative
separation board.  He further states that the improper conduct on the part
of the recorder in which irrelevant evidence was presented prejudiced the
applicant’s hearing.  He also states that the applicant’s silence during
the proceedings were improperly held against him, that the appointing
officer testified at the proceedings, which was also prejudicial and
outrageous, and that the defense counsel was not allowed to properly defend
the applicant during the proceedings.

3.  Counsel provides no additional documents with the application.





CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Tennessee Army National Guard (TNARNG) on
21 February 1997 for a period of 8 years.  He served until he was honorably
discharged from the TNARNG on 6 January 1998 for the purpose of enlisting
in the Regular Army.

2.  He enlisted in the Regular Army on 7 January 1998 for a period of 3
years and training as a petroleum supply specialist.  He completed his
training at Fort Lee, Virginia and was transferred to Fort Bragg, North
Carolina.

3.  On 21 January 2000, while stationed in Korea, he reenlisted for a
period of 3 years.  On 3 July 2002, while stationed at Fort Hood, Texas, in
the pay grade of E-4, he reenlisted for a period of 3 years and assignment
to Fort Campbell, Kentucky.  He was reassigned to Fort Campbell on 20
February 2003 for duty as a finance specialist.  He was promoted to the pay
grade of E-5 on 1 March 2003.

4.  On 9 October 2003, an investigation conducted under Army Regulation
(AR) 15-6 regarding a 22 August 2003 EO complaint filed against the
applicant was completed.  The investigating officer recommended that
appropriate disciplinary action be taken against the applicant, that EO
classes be conducted separately for noncommissioned officers and lower
enlisted personnel and that a sensing session be held with lower enlisted
female personnel.

5.  The applicant elected to appeal the outcome of the investigation
contending that the investigation was not conducted properly and indicated
that he would submit his follow-up in writing within 7 days.

6.  On 12 February 2004, nonjudicial punishment was imposed against him for
disobeying a lawful order from a superior noncommissioned officer to stay
away from a specified female Soldier, for two specifications of wrongfully
engaging in a sexual relationship with subordinate female Soldiers, for
making an inappropriate remark to a female Soldier and for committing
sodomy with a subordinate female Soldier.  His punishment consisted of a
reduction to the pay grade of E-4, a forfeiture of pay for two months and
restriction for 45 days (both suspended if not vacated before 12 August
2004) and extra duty for 45 days.

7.  The applicant appealed his punishment with the assistance of counsel
and contended that his hearing was not fair and that he was unjustly denied
access to all of the information that was used against him in the
proceedings.  His appeal was denied on 23 February 2004.

8.  On 18 March 2004, the applicant sent a memorandum to his battalion
commander requesting that he set aside the NJP and that his request be
considered a complaint under Article 138.  The commander determined that no
action on his complaint should be taken and informed the applicant that his
complaint was forwarded to the office of the Judge Advocate General (JAG).

9.  On 25 March 2004, in response to the applicant’s request to have the
NJP set aside and all rights and privileges restored, the commanding
general (CG) informed the applicant that the Office of the Staff Judge
Advocate had thoroughly reviewed his case and had determined that contrary
to his assertions, he had been afforded the opportunity to review the AR15-
6 investigation and that the entire file was provided to him and his
counsel.  Additionally, the battalion commander offered to make him a copy
of the file and he declined and elected to proceed with the NJP.  The CG
denied his request.

10.  On 21 April 2004, an arrest warrant was issued in Montgomery County,
Tennessee for the arrest of the applicant on a charge of stalking.  A
$5,000 Bond was set.

11.  On 11 May 2004, the applicant received a relief for cause
noncommissioned Officer Evaluation Report (NCOER) covering the period from
March 2003 to January 2004.

12.  The commander notified the applicant on 18 June 2004 that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, chapter 14, for misconduct – commission of a
serious offense.  His commander cited as the reasons for her recommendation
that the applicant had been given a no-contact order by a superior
commissioned officer after he was accused of harassing a female Soldier,
violation of fraternization and sexual harassment policies, driving on post
with expired tags, failure to go to his place of duty, four incidents of
making false official statements, his NJP and being apprehended by civil
authorities for stalking.

13.  On 25 June 2004, the applicant submitted a Request for a Conditional
Waiver in which he agreed to waive appearance before an administrative
separation board contingent on his receiving an honorable discharge.  He
also elected not to submit a statement in his own behalf.  The convening
authority disapproved his request for a conditional waiver.

14.  On 1 September 2004, the Assistance Chief of Staff, G1 (ACoS-G1), who
was formerly the applicant’s battalion commander and who imposed NJP
against him, acting for the commanding general, appointed an administrative
separation board to consider whether the applicant should be discharged for
commission of a serious offense.

15.  On 23 September 2004, the applicant appeared before the administrative
separation board with his counsel.  His counsel did not challenge any of
the board members but did object to the government exhibit of the arrest
warrant (exhibit #2) for stalking because it did not indicate a final
outcome or action.  He also objected to exhibits #7 through 12.

16.  The first witness called was the ACoS,G1, the applicant’s former
battalion commander who indicated that he had administered NJP against the
applicant and that he had provided the applicant the AR 15-6 investigation.
 He further testified that he was present in Iraq at the time the
applicant’s misconduct occurred and that he did not appoint the
investigating officer.  He also discussed, after defense counsel objected,
the command climate survey that was conducted in the unit before he was
dismissed.  There is no evidence to show that defense counsel raised any
objections at the time to the former battalion commander’s testimony or the
fact that he had signed the order appointing the board.

17.  After hearing testimony from witnesses on both sides the applicant
declined to make a statement of any sort.  In closing, the recorder advised
the board members that the applicant was exercising his rights not to make
a statement and that no negative connotations were to be made in regards to
his guilt or innocence simply because he exercised his rights.

18.  After reviewing the evidence and testimony presented, the board found
that the preponderance of evidence supported the fact that all of
allegations against the applicant were substantiated and recommended that
he be discharged under honorable conditions.  Two of the board members did
state that they had hoped that the applicant would make a statement and
hopefully convince them that his misconduct was a misunderstanding because
nothing presented thus far indicated that it was a misunderstanding.

19.  On 15 October 2004, the applicant’s defense counsel submitted a
request to the convening authority requesting that he disapprove the
findings and recommendations of the administrative separation board.  He
contended that the testimony of the ACoS, G1, who was the appointing
official was prejudicial to the applicant’s case and that two of the board
members improperly used the fact that the applicant did not testify as a
means to judge him improperly.  Additionally, he contended that evidence
was submitted by the recorder that was not relevant to the proceedings and
were prejudicial to the applicant.

20.  After reviewing all of the available evidence in the case, the
convening authority (a major general) approved the findings and
recommendations of the board and directed that the applicant be discharged
under the provisions of Army Regulation 635-200, paragraph 14-12c for
misconduct – commission of a serious offense.  He directed that the
applicant be furnished a General Discharge Certificate.

21.  Accordingly, the applicant was discharged under honorable conditions
on 13 December 2004, under the provisions of Army Regulation 635-200,
paragraph 14-12c for misconduct.  He had served 6 years, 11 months and 7
days of total active service.

22.  On 15 April 2005, he applied to the ADRB for an upgrade of his
discharge.  After reviewing all of the available evidence, the ADRB opined
that his discharge was both proper and equitable and voted unanimously to
deny his application on 7 December 2005.

23.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
included minor infractions, a pattern of misconduct, involvement in
frequent incidents of a discreditable nature with civil and military
authorities, commission of a serious offense, and drug abuse.  Although an
honorable or general is authorized, a discharge under other than honorable
conditions is normally considered appropriate.

24.  Paragraph 2-11 of that regulation provides, in pertinent part, that
the rules of evidence for court-martial and other judicial proceedings are
not applicable before an administrative separation board.  Reasonable
restrictions will be observed, however, concerning relevancy and competency
of evidence.

25.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  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.  Accordingly, his discharge appropriately characterizes his otherwise
undistinguished record of service.

3.  The applicant's contentions and supporting documents have been noted,
however, they are not sufficiently mitigating to warrant relief when
compared to his offenses and overall record of service.  The applicant
violated the trust placed in him as a noncommissioned officer and his
service simply does not rise to the level of a fully honorable discharge.

4.  The applicant’s contention that the testimony of the ACoS,G1, the
appointing official as well as the applicant’s former battalion commander,
prejudiced the proceedings has been noted.  However, the applicant has
failed to show through the evidence submitted or the evidence of record
that such was the case.

5.  The board members were charged with reviewing all of the evidence and
testimony and determining if any or all were applicable to the
circumstances and the allegations against the applicant.  The battalion
commander’s testimony provided insight into the sequence of events that had
occurred through multiple commanders over the course of the events and
while the board members were expecting the applicant to provide some
insight into the events and to hopefully dispel some of the allegations
against him, he elected to exercise his rights and not to make a statement.
 Accordingly, the board members were bound to consider the evidence before
them, which was substantial and had not been dispelled by sufficient
evidence and/or testimony.  The fact that the board recommended that he
receive a general discharge for offenses that could have warranted a
discharge under other than honorable conditions is indicative that his
silence was not held against him.  There is also no evidence to show that
the applicant and/or his counsel were denied the opportunity to submit any
matters they believed to be relevant to their case.

6.  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.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LS  __  ___PS __  ___AM  _  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.





                                  _____Linda Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004475                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |20041213                                |
|DISCHARGE AUTHORITY     |AR635-200/CH14 . . . . .                |
|DISCHARGE REASON        |MISCONDUCT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |626/A60.00                              |
|1.144.6000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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