IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080015625 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant essentially states that the evidence in his case supports a conclusion that his characterization of service was too harsh and, as a result, it is inequitable.  He also states that while his conduct is not condoned, his overall length and quality of his service, to include combat service, mitigates the discrediting entries in his service record.  He further states that he served 6 years and 5 months of faithful and honorable service in both wartime and peacetime, and that he has no other adverse actions in his military records.  Additionally, he states that he has continued to serve his country as an Army contractor in Iraq since 22 May 2007.  Further, he asks the Army Board for Correction of Military Records (ABCMR) to review his records, and that it will be seen that the evidence in his case supports a conclusion that his characterization of service was too harsh and, as a result, is unjust.

3.  The applicant provides his five officer evaluation reports (OERs) which covered the period from 25 May 2003 through 28 August 2003, from 29 August 2003 through 1 August 2004, from 2 August 2004 through 25 February 2005, from 26 February 2005 through 30 November 2005, and from 1 February 2006 through 1 October 2006; orders, dated 30 June 1997, which awarded him the Parachutist Badge; orders, dated 21 July 2003, which awarded him the Combat Infantryman Badge; and a portion of the Army Discharge Review Board (ADRB) 

proceeding which denied his petition to upgrade his discharge and change his narrative reason for separation in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was appointed a Reserve commissioned officer on 18 December 2000, and entered active duty on that date.  He was promoted to first lieutenant/O-2 on 18 June 2002 and served in Kuwait and Iraq from 21 April 2003 to 20 July 2004.  He was promoted to captain/O-3 on 1 March 2005, and after completing a tour in Germany, he was reassigned to Fort Huachuca, Arizona with a duty station at Fort Riley, Kansas.  He was married with three dependents at the time.

2.  Although not filed in his records, the available evidence shows that on 21 February 2007, nonjudicial punishment (NJP) was imposed against the applicant by a general officer for misconduct (conduct unbecoming an officer).

3.  On 2 March 2007, the applicant was notified by his commanding general that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2b(8) for acts of personal misconduct and moral dereliction.  He cited as the basis for his notification to the applicant  that the applicant had repeatedly engaged in an improper relationship with the spouse of a Soldier who was deployed to Iraq, that during the course of the Army Regulation 15-6 investigation he violated clear and direct orders to have no contact with the individual in question, and that he had attempted to improperly influence the investigation.  Additionally, he had received NJP for that misconduct (conduct unbecoming an officer) on 21 February 2007.  The applicant was also advised of all of his rights as pertained to initiation of elimination proceedings.

4.  On 13 March 2007, the applicant submitted his request for resignation in lieu of elimination and acknowledged that he understood that he could receive an honorable, general or under other than honorable discharge as determined by Headquarters, Department of the Army.   

5.  On 4 April 2007, the Acting Deputy Assistant Secretary for Army Review Boards accepted the applicant's resignation and directed that he be discharged under other than honorable conditions.

6.  Accordingly, he was discharged under other than honorable conditions on 16 May 2007, under the provisions of Army Regulation 600-8-24 for unacceptable conduct.  He had served 6 years, 4 months and 29 days of total active service and had served in Iraq from 21 April 2003 to 20 July 2004.
7.  On 4 June 2008, the ADRB denied the applicant’s petition to upgrade his discharge or change the narrative reason for his separation.

8.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of officer personnel.  Chapter 4 of this regulation prescribes reasons and procedures for eliminating officers for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security.  

9.  Paragraph 4-1 of Army Regulation 600-8-24 provides, in pertinent part, that 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.

10.  Paragraph 4-2b of Army Regulation 600-8-24 specifically governs elimination for misconduct, moral or professional dereliction or in the interests of national security.

11.  Paragraph 1-22 of Army Regulation 600-8-24 provides, in pertinent part, that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearly for reasons that do not involve acts of misconduct.  

12.  Paragraph 1-22 of Army Regulation 600-8-24 also provides, in pertinent part, that an officer will normally receive a general discharge when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  Additionally, paragraph 1-22 of Army Regulation 600-8-24 provides, in pertinent part, that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. An officer will normally receive a discharge under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, or are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge.

2.  It is clear that the applicant committed conduct unacceptable for an officer, and that he was discharged under other than honorable conditions for his misconduct.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service and the misconduct for which he was discharged.

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.

4.  In view of the foregoing, there is no basis for upgrading the applicant’s discharge under other than honorable conditions to an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  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.




      _______ _XXX   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080015625



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ABCMR Record of Proceedings (cont)                                         AR20080015625



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