RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2006
      DOCKET NUMBER:  AR20060007502


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Frank C. Jones II             |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 the decision of the Army Grade
Determination Review Board be reversed and that he be placed on the retired
list in pay grade W-2.

2.  The applicant states, in effect, that the Army Grade Determination
Board decision resulted from unjust action taken against him by his chain
of command. In effect, the decision of the Grade Determination Board
constitutes unjust “Taking” that violates his due process rights guaranteed
under Army Regulation 600-8-24 and Army Regulation 15-6.

3.  The applicant provides copies of a 24 February 2004 memorandum from his
defense counsel to the Commanding General, Special Forces Command (SFC), a
29 September 2004 memorandum from the Army Human Resources Command (HRC) to
the applicant and his personal 14 November 2005 response to the HRC
memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty in 1986 and was appointed a warrant
officer one (WO1) on 1 July 1999.  He was promoted to chief warrant officer
two on 1 July 2001.

2.  The Commanding General, SFC issued a memorandum of reprimand (GOMOR) on
26 September 2003 to the applicant for gross negligence and for endangering
himself and Colombian nationals by driving a HMMWV off the military
installation and into a high threat area.  While drinking alcohol he left
the vehicle unattended, even though it contained live 40mm rounds.

3.  On 9 October 2003, Commanding General, Headquarters Special Forces
Command notified the applicant that elimination action had been initiated
due to misconduct as evidenced by a 4 May 2001 reprimand for a pattern of
spousal abuse and the 26 September 2003 reprimand.  The applicant was
notified of his rights including, his right to resign, to request discharge
in lieu of elimination or to request retirement in lieu of elimination, if
otherwise eligible.

4.  The report of the 21 January 2004 board of inquiry is not contained in
the available records.

5.  His assigned defense counsel appealed the board of inquiry’s
recommendation in a 24 February 2004 memorandum through the Commanding
General, SFC to the Commanding General, HRC.  Counsel contended that the
board’s lack of jurisdiction to recommend revocation of the applicant’s
Special Forces Tab demonstrated that they did not have a clear
understanding of the case or its merits.  He argued that the board
recommendations were insufficient in that they were not supported by
reasons as required by the regulation.  Counsel also contended that the
applicant was denied due process as prescribed in Army Regulations 600-8-24
and 15-6 because the government had not arranged for witnesses (the
applicant’s wife and two Colombian Army officers) to be present.  Counsel
also argued that the only evidence of a violation of travel policy was the
GOMOR.  However, that document had not yet been finalized when the
notification of intended elimination was forwarded and they were not
otherwise informed that it would be introduced.  Counsel alleged that,
during closed deliberations, the board members had improperly consulted
with unauthorized and unrevealed persons.  Finely, counsel argued the only
effective remedy to the cited injustices was to retain the applicant on
active duty.

6.  The applicant, in a 24 February 2004 memorandum to the commanding
general, noted his years of honorable service and argued, in effect, that
the poor quality of the evidence against him coupled with the perceived due
process violations made the general discharge unjust.  He thought he should
be retained on active duty because he still had the capacity to serve, but
he asked that, if he were to be separated, he be granted an honorable
discharge.  He also pointed out that the board had exceeded its authority
by recommending that his Special Forces Tab be revoked, which raised
questions about the way they had approached that assignment.

7.  In an 8 April 2004, memorandum to the applicant, the Staff Judge
Advocate (SJA) informed the applicant that the board of inquiry had
recommended that the applicant be eliminated and had taken corrective
action on the deficiencies noted.  The applicant could submit an additional
brief and statement if he so desired.  The case and his additional
submissions would be considered by a board of review and that the Secretary
of the Army would decide the case if that board recommended non-retention.
The SJA also informed the applicant that he had the option of resignation
in lieu of elimination or he could request discharge or retirement in lieu
of elimination.

8.  The applicant acknowledged the information, stated that he had
consulted with counsel and indicated his intention to not submit any
additional information and to not elect one of the cited options of
resignation, requesting discharge in lieu of elimination or requesting
retirement.

9.  The Officer Retirements and Separations Branch, HRC forwarded the case
for action to the Deputy Assistant Secretary of the Army, Military Review
Boards Agency, on 15 June 2004.

10.  The Deputy Assistant Secretary of the Army (Army Review Boards)
returned the case, without action, to the Commanding General, SFC as
insufficient under paragraph 4-15b of Army Regulation 600-8-24; because,
“The corrected finding forwarded for consideration are legal conclusions
without a factual statement.”

11.  The Commanding General SFC forwarded the expanded findings to the
Commanding General, Special Operations Command and recommended that the
applicant be separated from the Army with a general discharge.

12.  In a memorandum to the Commanding General HRC, the Commanding General,
Special Operations Command indicated that “I have reviewed and I endorse
the expanded findings memorandum regarding the Separation Board Proceeding
against [the applicant].”  He recommended approval of the board’s, “revised
recommendations” for a general discharge.

13.  On 19 August 2004 the Army Board of Review for Eliminations considered
the case as recommended by the Board of Inquiry on 21 January 2004.  The
recorder, a member of the Army (Judge Advocate General’s Corps) reported
that the case had progressed regularly and that no legal problems were
involved.   The Army Board of Review for Eliminations considered the case
and found the government had established by a preponderance of the evidence
that the applicant had displayed gross negligence and endangered himself,
his unit and Colombian nationals by, having consumed alcohol, he drove a
HMMWV off a military installation into a high threat area of Arauca,
Colombia and left the vehicle while it contained live 40mm rounds.  The
Army Board of Review for Eliminations recommended that the applicant be
separated with a general, under honorable conditions discharge.

14.  The Deputy Assistant Secretary of the Army (DASA), Military Review
Boards Agency forwarded the case to the Assistant Secretary of the Army
(Manpower and Reserve Affairs (M&RA)).  The DASA noted that, if the
applicant was to be retained and ultimately retired without a subsequent
promotion, a Grade Determination Review Board would decide his retirement
pay grade.  The DASA noted that whereas the original show cause board had
found the spouse abuse a reason for the applicant’s non-retention, the
board of review had not.  A
27 September 2004 memorandum from the DASA published the Assistant
Secretary of the Army (M&RA) decision to retain and reassign the applicant.


15.  The applicant acknowledged, on 18 October 2005, that a Grade
Determination Board would review his case and indicated that he intended to
submit additional documentation.  The applicant argued that the GOMOR
incident was being used to punish him “even though it could not be proven
or established under the Uniform Code of Military Justice.”  He also noted
that the decision that retained him had said nothing about reduction.  He
contended that he was a victim and that he had been punished by improper
evaluations since the alleged incident.  He pointed out that despite all
these setbacks he had obtained the support of his current supervisor to
demonstrate that he had served satisfactorily as a chief warrant officer
two.

16.  The executive officer of the Headquarters and Headquarters Company,
Special Operations Command praised the applicant’s performance and
abilities and recommended that he be retired in the rank of chief warrant
officer two.

17.  The Army Grade Determination Board recommended that the applicant be
retired in the grade of warrant officer one, pay grade W-1 and on 25
November 2005 the Deputy Assistant Secretary of the Army (Army Review
Boards) directed that result.

18.  The application in this case was dated 16 May 2006.

19.  The applicant’s DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows he retired due to length of service on 31 August 2006.

 DISCUSSION AND CONCLUSIONS:

1.  The applicant was not deprived of any due process; any shortcoming in
the original elimination board process was corrected and furthermore he was
retained on active duty.

2.  There is neither available evidence or convincing argument that the
procedures of the grade determination board were improper or that the
outcome was inequitable.

3.  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

__ALR  __  __QAS_  __FCJ___   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.




                                  _         Allen L. Raub______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007502                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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