RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060005104


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Gunlicks                |     |Chairperson          |
|     |Mr. Scott Faught                  |     |Member               |
|     |Mr. Edward Montgomery             |     |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 that his narrative reason for separation in item
28 on his DD Form 214 (Certificate of Release or Discharge from Active
Duty) be changed from Misconduct, Moral Dereliction to Unqualified
Resignation and that item 26 (Separation Code) and item 27 (Reentry Code)
be changed to allow him to enlist in the Army National Guard.  He requests
that item 12f be amended to show 3 years of foreign service and that the
National Defense Service Medal be added to item 13 (Decorations, Medals,
Badges, Citations and Campaign Ribbons Awarded or Authorized).

2.  The applicant states he resigned his commission.  He states that
misconduct, moral dereliction reads as though he committed some gross deed.
 His misconduct was something said between two officers in confidence in
1990.  The wording and coding prevent him from further serving his country.
 He states that it is unjust and he has been punished for 15 years by this
document when he applies for Federal Civil Service or other positions of
trust.  He also states that this is unjust because his children will
believe that he is a criminal if they see this document.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 May 1991.  The application submitted in this case is dated
22 March 2006.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was appointed a Reserve commissioned officer on 15 May
1982 in the rank of second lieutenant.  He was ordered to active duty on 4
June 1982 and was assigned to the U.S. Army Ordnance Center and School,
Aberdeen Proving Ground, Maryland to attend the Ordnance Officer Basic
Course.


4.  His DA Form 2-1 (Personnel Qualification Record) shows he departed the
U.S. Army Ordnance Center and School, Aberdeen Proving Ground, Maryland and
was reassigned to Germany on 3 December 1982.

5.  The applicant received an Officer Evaluation Report (OER) for the
period ending 4 November 1983 which shows his principal duty title as
Platoon Leader in the 42nd Maintenance Company in Europe.  Under Part IV
(Performance Evaluation - Professionalism), the rater indicated the
applicant performed exceptionally well under physical and mental stress;
his military bearing and appearance were outstanding; his dedication to
duty and sense of responsibility were particularly noteworthy; and he was
above reproach.  The senior rater indicated in Part VII that the applicant
was a superior officer and had worked extremely hard preparing himself for
his new duties as Platoon Leader and Accountable Officer.  The senior rater
also indicated that the applicant should continue to be assigned to tough
jobs and promoted to first lieutenant.

6.  He was promoted to first lieutenant on 15 November 1983.

7.  The applicant received an OER for the period ending 17 May 1984 which
shows his principal duty title as Platoon Leader and Responsible Officer
with the 42nd Maintenance Company in Europe.  Under Part IV, the rater
indicated that the applicant was particularly outstanding; he expressed
himself exceedingly well; he was exceptional; and he was above reproach.
Under Part VII, the senior rater indicated the applicant did an excellent
job in establishing a sound program for forward storage of Class II, IV and
VII items.  The senior rater indicated the applicant should be promoted to
captain and scheduled for advance course attendance.

8.  The applicant received an OER for the period ending 17 May 1985 which
shows his principal duty title as Platoon Leader and Responsible Officer in
the 42nd Maintenance Company in Europe.  Under Part IV, his rater indicated
that he had an unlimited capacity to acquire knowledge and grasped
concepts, but he did not perform up to his potential based on a lot of
personal mental stress; he needed to improve his leadership style, and
learn to lead by example; he must challenge his Soldiers to do more, and
require higher standards.  The senior rater indicated in Part VII that the
applicant was an above average officer who had performed an incredibly
difficult mission in a superior manner.  The senior rater indicated the
applicant was a dedicated young officer and he had continued to grow and
develop in experience.  To further widen his horizon, the applicant had
been selected to be the company Executive Officer.  The senior rater
further indicated the applicant had excellent potential and should be
promoted with [his] peers.

9.  The applicant received an OER for the period ending 29 October 1985
which shows he was an Executive Officer in the 75th General Support, Supply
Company in Europe.  Under Part IV, the rater indicated the applicant was
under high factors of stress and pressure for protracted periods, he
maintained at all times a level of discipline according to what was needed;
he was consistently tardy for work with little or no reason for his
lateness; he had been counseled several times concerning his hair and
mustache; and he needed to challenge his Soldiers more by giving them
tougher standards.  The senior rater indicated in Part VII that the
applicant was a positive, intelligent and technically adept officer of fine
quality.  He needed to mature in his professional knowledge and apply
himself fully in all endeavors.  The senior rater indicated he should be
selected for attendance at the Ordnance Officers Advance Course.

10.  His Personnel Qualification Record shows he departed Germany
on 2 December 1985.

11.  He was promoted to captain on 1 February 1986.

12.  The applicant received an OER for the period ending 29 May 1990 which
shows he was a Battalion Operations Officer in Headquarters and
Headquarters Company, 187th Ordnance Battalion, 4th Training Brigade.
Under Part IV, the rater indicated the applicant was beyond reproach; he
completed his Masters degree; and he never failed to state the case as he
saw it.  The senior rater indicated under Part VII that the applicant’s
performance as the Battalion S-3 had been inconsistent.  His inability to
correctly determine the relative priority of actions had resulted in
important requirements not being met.  The senior rater also indicated that
the applicant’s performance had been such that he had no confidence in the
applicant’s ability to function as the Battalion S-3.  The senior rater
indicated that the applicant should not be promoted.

13.  On 5 September 1990, the applicant received a General Officer
Memorandum of Reprimand (GOMOR) for falsely reporting to a Department of
the Army (DA) Ordnance Branch assignment officer on 9 August 1990 that a
senior officer had been arrested for drunk driving.  This GOMOR was imposed
as an administrative measure and not as punishment under Article 15,
Uniform Code of Military Justice.  He was informed that the GOMOR could be
filed in his Official Military Personnel File (OMPF).

14.  The applicant acknowledged receipt of the GOMOR on 12 September 1990.
He acknowledged that he understood the unfavorable information presented
against him and elected to submit statements in his behalf.  In effect, he
stated that he did not present the subject matter in any manner which could
have been taken seriously.  He stated that he had never, nor would he ever,
intentionally upset the personnel or operations of the 187th Ordnance
Battalion.  He intended no harm or discredit to LTC ______.  He stated he
had learned much professionally and personally since 10 August 1990.  He
had learned what he would believe to be an inconsequential remark may have
devastating and lasting consequences.  He apologized to LTC ______, but
words could not express his sorrow for having been careless, nor can they
restore what he could have taken away.

15.  On 4 October 1990, the general officer directed that the GOMOR be
given to the applicant and placed in his OMPF.

16.  On 4 February 1991, a general officer notified the applicant of
elimination proceedings under the provisions of Army Regulation 635-100
(Personnel Separations - Officer Personnel), paragraph 5-10b because of
substandard performance of duty; and paragraphs 5-11a(4), 5-11a(5) and
paragraph 5-11(8) because of misconduct, moral or professional dereliction
or in the interest of national security.  He was advised of his rights.
The general officer advised the applicant that in accordance with Army
Regulation 635-100, paragraph 5-14, he could submit his resignation in lieu
of elimination according to Army Regulation 635-100, chapter 5 and Army
Regulation 635-120, chapter 4; he could request discharge in lieu of
elimination according to Army Regulation 635-100, chapter 5 and Army
Regulation 635-120, chapter 8; or in lieu of resignation or discharge,
submit a rebuttal, and/or a declination statement and request appearance
before a board of inquiry.

17.  On 11 March 1991, the applicant submitted a request for discharge
under the provisions of Army Regulation 635-120, chapter 8 in lieu of
further elimination proceedings.  He consulted with legal counsel and
waived his right to appear before a board of officers.  He stated that he
understood he was entitled to separation pay because he was notified, in
writing by the general officer, that he must show cause for retention, if
this request was accepted.  He further understood that he would receive an
Honorable, General, or Other Than Honorable Discharge as determined at
Headquarters, Department of the Army.

18.  Department of the Army Message 061211Z May 1991 announced that the
applicant’s discharge in lieu of elimination was approved under the
provisions of Army Regulation 635-120, chapter 8 for misconduct, moral or
professional dereliction.  The separation code was indicated as “JNC.”

19.  On 24 May 1991, the applicant was discharged from active duty under
the provisions of Army Regulation, 635-100, paragraph 5-12 and Army
Regulation 635-120, chapter 10.  He had completed 8 years, 11 months and 21
days of active military service.
20.  Item 28 on the applicant’s DD Form 214 shows the entry “MISCONDUCT,
MORAL DERELICTION.”

21.  Item 26 on the applicant’s DD Form 214 shows the entry “JNC.”

22.  Item 27 on the applicant’s DD Form 214 shows the entry “NA.”

23.  Item 12f on the applicant’s DD Form 214 shows 2 years and 16 days of
foreign service.

24.  Army Regulation 635-100, Chapter 5 prescribed the means and procedures
to eliminate officers from the Army for substandard performance of duty,
misconduct, moral or professional dereliction, or in the interest of
national security.  Subparagraph 5-10b stated one of the reasons which
authorized elimination of an officer due to substandard performance of duty
was failure to keep pace or to progress with contemporaries as demonstrated
by a low record of efficiency when compared with other officers of the same
grade and competitive category.

25.  Paragraph 5-11 of Army Regulation 635-100 stated the reasons which
authorized elimination of an officer due to misconduct, moral or
professional dereliction or in the interest of national security.  Those
reasons included intentional omission or misstatement of fact in official
statements or records, for the purpose of misrepresentation; acts of
personal misconduct (including, but not limited to, acts committed while in
a drunken or drug intoxicated state); and conduct unbecoming an officer.

26.  Paragraph 5-12 of Army Regulation 635-100 stated that an officer’s
OER, among other reasons, could give rise to serious doubt as to the
advisability of permitting the officer concerned to retain a commission or
warrant and required review of his or her overall record.  This was to
determine if such derogatory information, when viewed in conjunction with
other aspects of his or her record, warranted recommendation for
elimination.

27.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes)
prescribed the specific authorities (regulatory, statutory, or other
directives), the reasons for the separation of members from active military
service, and the SPD codes to be used for these stated reasons.  The
regulation in effect at the time showed that the SPD code “JNC” as shown on
the applicant’s DD Form 214 specified the narrative reason for separation
as involuntary release or transfer for “Misconduct – Moral or Professional
Dereliction or in Interests of National Security” and that the authority
for separation under this separation program designator was “Army
Regulation 635-100, paragraph 5-12 and Army Regulation 635-120, chapter
10.”

28.  Army Regulation 635-5 (Separation Documents) governs the preparation
of the DD Form 214.  In pertinent part, it states that RE codes are not
applicable to officers, United States Military Academy (USMA) cadets who
fail to graduate or enter USMA from active duty status, or to Reserve
Component Soldiers being separated for other than cause.

29.  Army Regulation 600-8-22 (Military Awards) as amended provides that
the National Defense Service Medal is awarded for honorable active service
for any period between 27 July 1950 through 27 July 1954, 1 January 1961
through 14 August 1974, 2 August 1990 through 30 November 1995 and 11
September 2001 to a date to be determined.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was notified of initiation of elimination proceedings
under the provisions of Army Regulation 635-100, paragraph 5-10b because of
his substandard performance of duty and because of misconduct, moral or
professional dereliction or in the interest of national security.

2.  The applicant voluntarily submitted a request to be discharged under
the provisions of Army Regulation 635-120, chapter 8 in lieu of further
elimination proceedings.  He did not submit a request for unqualified
resignation.

3.  Department of the Army Message 061211Z May 1991 approved the
applicant’s request for discharge in lieu of elimination and directed the
applicant be discharged under the provisions of Army Regulation 635-120,
chapter 8 for misconduct, moral or professional dereliction.

4.  The applicant’s discharge proceedings under the provisions of Army
Regulation 635-100, paragraph 5-12 and Army Regulation 635-120, chapter 10
for misconduct, moral dereliction are administratively correct and in
conformance with applicable regulations.

5.  Considering the applicant's substandard performance as indicated on his
OER for the period ending 29 May 1990 and his misconduct indicated on his
GOMOR, it appears the chain of command determined that elimination under
the provisions of Army Regulation 635-100, paragraph 5-12 and Army
Regulation 635-120, chapter 10 was appropriate.

6.  The applicant’s DD Form 214 shows he was discharged with a separation
code of “JNC” in accordance with the governing regulation.

7.  Based on Army Regulation 635-5, RE codes are not applicable to
officers.  Therefore, item 27 properly reflects the entry “NA.”

8.  The applicant’s Personnel Qualification Record shows he served in
Germany from 3 December 1982 to 2 December 1985, which is a period of 3
years of foreign service.  However, item 12f on his DD Form 214 reflects
only 2 years and 16 days of foreign service.  Therefore, it would be
appropriate to amend item 12f on his DD Form 214 to show 3 years of foreign
service.

9.  The applicant served a period of qualifying service for award of the
National Defense Service Medal.  Therefore, this medal should be added to
item 13 on his DD Form 214.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 May 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 23 May 1994.  The applicant did not file within the 3-year
statute of limitations; however, based on the available evidence, it would
be in the interest of justice to excuse failure to timely file in this
case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

JG______  SF______  EM_____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected:

      a.  by adding the National Defense Service Medal to item 13 on his
DD Form 214; and


      b.  amending item 12f on his DD Form 214 to show 3 years of foreign
service.


2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
changing his narrative reason from Misconduct, Moral Dereliction to
Unqualified Resignation and changing his separation code and RE code.




                            James Gunlicks________
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060005104                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19910524                                |
|DISCHARGE AUTHORITY     |AR635-100,para 5-12 and 635-120, chap 10|
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200                                |
|2.                      |107.0000                                |
|3.                      |100.0300                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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