IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080015676 


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 defers his request to counsel.

2.  The applicant made a statement through his counsel. 

3.  The applicant provided additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s discharge, characterization of discharge, and narrative reason for separation be declared null and void and be expunged from the applicant’s Official Military Personnel File (OMPF), and in effect, reinstated on active duty.

2.  Counsel states that the preponderance of evidence shows that the applicant’s discharge, characterization of discharge, and narrative reason for separation were largely in part based upon false official statements and false testimony.  Counsel further elaborates as follows:

	a.  The applicant's discharge was based on false official statements obtained during the informal investigation.

	b.  The applicant's discharge was based on false sworn testimony.

	c.  The applicant's company-level chain of command knew the applicant had an alcohol abuse problem; yet, encouraged him and other members of the team to deploy to Iraq with alcoholic beverages immediately prior to the incident of misconduct which served as the basis for the applicant's involuntary discharge.

	d.  The applicant was not considered for a rehabilitative transfer as required by regulatory guidance.

3.  Counsel provided the following additional documentary evidence in support of the applicant's request:

	a.  Enlisted Record Brief (ERB), dated 23 June 2006.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 27 December 2006.

	c.  Headquarters, Forward Operating Base-Central, Iraq, Memoranda, dated 4 May 2006 and 10 May 2006, subject:  Informal Commander’s Inquiry into Vehicular Accident.

	d.  DA Form 2823 (Sworn Statement), dated 10 May 2006.

	e.  A Company, 1st Battalion, 7th Special Forces Group, Fort Bragg, North Carolina, Initiation of Separation Memorandum, dated 14 July 2006.

	f.  Headquarters, 7th Special Forces Group, Fort Bragg, Notification to Appear Before a Board of Officers.

	g.  Womack Army Medical Center, Fort Bragg, Army Substance Abuse Program (ASAP) Counselor Statements, dated 31 August 2006 and 5 September 2006.

	h.  DA Form 1574 (Report of Proceedings By Investigating Officer/Board of Officers), dated 7 September 2006.

	i.  Summarized Proceedings of Administrative Board, dated 7 September 2006. 

	j.  Headquarters, U.S. Army Special Forces Command, Fort Bragg, Separation Memorandum, dated 7 September 2006.

	k.  Letters, dated 11 December 2006 and 21 December 2006, from the applicant’s counsel to the Staff Judge Advocate (SJA), Fort Bragg; and dated
19 December 2006, to the Commanding General, Special Forces Command, Fort Bragg.
	l.  Photograph of a damaged vehicle.

	m.  Email, dated 20 December 2006, from the SJA, Fort Bragg, to the applicant’s counsel.

	n.  Report of Behavior Testing and Forensics, Private Investigation and Polygraph Services, Fayetteville, North Carolina.

	o.  Curriculum Vitae, Polygraph Examiner.

	p.  Self-authored affidavits, dated 11 December 2006 and 19 October 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 31 July 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  His records also show he executed a series of extensions and/or reenlistments in the Regular Army including a 4-year reenlistment on 8 April 1996, a 6-year reenlistment on 8 April 1999, and an indefinite reenlistment on 25 August 2004.  He was promoted to sergeant (SGT)/E-5 on 1 October 1995 and to staff sergeant (SSG)/E-6 on 1 May 1998.

2.  On 18 August 2000, the applicant successfully completed the Special Forces Qualification Course and was awarded MOS 18B (Special Forces Weapons Sergeant).  He served in Afghanistan from 5 November 2004 to 1 July 2005 and Iraq from 15 March 2006 to 15 October 2006.

3.  The applicant’s records also show he was awarded the Bronze Star Medal, the Army Commendation Medal (3rd Award), the Army Achievement Medal, the Army Good Conduct Medal (4th Award), the National Defense Service Medal, the Afghanistan Campaign Medal, the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, the Expert Infantryman Badge, the Ranger Tab, the Parachutist Badge, and the Air Assault Badge.  

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 10 July 2003, for twice failing to go at the prescribed time to his appointed place of duty, on or about 13 June 2003; being derelict in the performance of his duties in that he failed to maintain a cellular phone on his person, on or about 13 June 2003; failing to obey a lawful written order, in that he failed to follow the two person buddy rule while off the U.S. Government area in Bogota, Colombia, on or about 13 June 2003; failing to obey a lawful written order, in that he stayed in an off-post club in the yellow zone after dark, on or about 13 June 2003; failing to obey a lawful written order in that he remained outside the U.S. Government area after 0100 hours on or about 13 June 2003; being indebted to an unknown club in Bogota, Colombia, in the amount of 60,000.00 pesos for his bar bill and dishonorably failing to pay said debt, on or about 13 June 2003; and being incapacitated for the performance of his duties as a result of overindulgence in intoxicating liquor, between on or about 12 June 2003 and 13 June 2003.  His punishment consisted of reduction to SGT/E-5, 45 days of extra duty, and 45 days of restriction (suspended until 10 January 2004; and

	b.  on 9 June 2006, for disobeying a lawful order, by leaving his camp unarmed, on or about 4 May 2006; disobeying a lawful order, by leaving his camp without informing someone within his chain of command, on or about 4 May 2006; violating a lawful general order by wrongfully consuming alcohol in the Central Command (CENTCOM) Area of Operations (AO), on or about 4 May 2006; making a false statement about operating a vehicle, on or about 4 May 2006; and driving a vehicle while the alcohol concentration in his breath equaled or exceeded 0.10 grams of alcohol per 210 liters of breath, causing the vehicle to roll, and resulting in an injury to one accompanying contracted interpreter, on or about 4 May 2006.  His punishment consisted of reduction to SGT/E-5, forfeiture of $1,225 pay per month for 2 months (suspended until 9 December 2006),
45 days of extra duty, and 45 days of restriction (suspended until 9 December 2006).

5.  On 14 July 2006, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct, commission of a serious offense.  The specific basis of the recommendation was the applicant’s disobeying two lawful orders from his detachment commander, violating the CENTCOM General Order by consuming alcohol while in theater, making a false official statement, and operating a vehicle while his blood alcohol level was equal to or exceeding legal limits and flipping the vehicle, injuring a contracted interpreter.  The immediate commander further recommended an under other than honorable conditions discharge. 

6.  On 14 July 2006, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a Board of Officers and personal appearance before a Board of Officers.  

7.  On 26 July 2006, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR 635-200 for misconduct, commission of a serious offense.  The immediate commander further recommended an under other than honorable conditions discharge. 

8.  On 28 July 2006, the applicant’s intermediate commander reviewed the recommended separation action and recommended approval of the applicant’s discharge with an under other than honorable conditions discharge.  He further remarked that the applicant did not have the potential for full mobilization. 

9.  On 4 August 2006, the applicant's intermediate commander recommended the appointment of an administrative separation board to determine if the applicant should be separated from the Army under the provisions of chapter 14 of AR 635-200 for misconduct.  Subsequently, on 10 August 2006, an administrative separation board was appointed pursuant to governing Army regulations.

10.  On 15 August 2006, by memorandum, the administrative board president notified the applicant of the time, date, location, composition, uniform, and purpose of the administrative board.  He further explained his right to consult with counsel and present witnesses.  On 16 August 2006, the applicant acknowledged receipt of the notification to appear before the administrative board and his rights to present evidence or witnesses during the board.    

11.  On 31 August 2006, the administrative separation board president approved a request submitted by the applicant's defense counsel on his behalf to delay the administrative board convening date to allow the applicant and his defense counsel sufficient time to interview witnesses.

12.  At 0805 hours, on 7 September 2006, an administrative board convened at Fort Bragg, to determine whether to administratively separate the applicant from the Army for misconduct, commission of serious offenses.  The applicant and his counsel were present during the board and were afforded full opportunity to cross-examine adverse witnesses and/or to present evidence in his own behalf and to testify in person or submit a statement.  The board adjourned at 12:15 pm on 7 September 2006.

13.  The board reached an unanimous decision and found that a definite pattern of misconduct had been established in that he disobeyed two lawful orders; violated General Orders by consuming alcohol in the AO; made a false official statement; and operated a vehicle while his alcohol level was equal to or greater than the limit, thereby flipping the vehicle, and injuring a contracted interpreter.  Therefore, the board recommended to the approving authority that the applicant be separated from the Army with an Under Other than Honorable Conditions Discharge Certificate.  However, the board further recommended the separation be suspended and that the applicant be given a 12-month probationary period to show successful rehabilitation.  The board president authenticated the report of proceedings as complete and accurate.  

14.  On 25 October 2006, the applicant's senior commander concurred with the recommendations of the administrative separation board and further recommended the applicant's separation with an under other than honorable discharge.  However, he did not recommend suspension of the discharge.  The senior commander further remarked that the applicant displayed a pattern of misconduct as evidenced by his absenting himself from his unit due to overindulgence and intoxication in Colombia in 2002; violating force protection policies by remaining out past curfew and absenting himself due to overindulgence of intoxicating liquors in Colombia in June 2003; being negligent and accidentally discharging a pistol into his own hand in Afghanistan in April 2003; and operating a vehicle after previous intoxication resulting in an accident and injury to an interpreter in Iraq in May 2004.

15.  On 1 November 2006, an SJA at Fort Bragg, conducted a legal review of the administrative separation board and concluded that the board was properly composed and conducted and that the board's findings and recommendation were supported by the facts set forth in the packet.  Consequently, the SJA office had no legal objection to the board's findings and recommendation. 

16.  On 21 November 2006, the separation authority reviewed the request for separation for misconduct and disapproved the board’s recommendation to suspend the discharge for 12 months.  He further ordered the applicant discharged from the Army under the provisions of chapter 14 of AR 635-200 for misconduct, commission of a serious offense, with an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 27 December 2006.  The DD Form 214 he was issued at the time of his discharge shows he was discharged in accordance with chapter 14 of AR
635-200 with a character of service of under other than honorable conditions.  This form further shows he completed 14 years, 4 months, and 27 days of creditable military service.  Item 28 (Narrative Reason for Separation) of this DD Form 214 shows the entry “Misconduct (Serious Offense).”
17.  On 11 September 2008, the Army Discharge Review Board (ADRB) approved the applicant’s petition and upgraded the characterization of his service to “general, under honorable conditions” and restoration of his rank/grade to SGT/E-5.  However, the ADRB determined that the reason for discharge was both proper and equitable.  

18.  AR 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action is taken to separate a member for misconduct when it is clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

19.  AR 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  On 4 May 2006, during his service in Iraq, the applicant left his compound unarmed and without proper authorization, but accompanied by two contracted interpreters.  On his way, he lost control of the vehicle he was driving, causing an injury to one interpreter and severe damage to the vehicle.  When military police arrived, they conducted breathalyzer tests on the applicant and the interpreters.  The applicant tested positive for alcohol consumption. 

2.  The evidence of record shows that the applicant had a history of misconduct ranging from failure to obey written orders, being derelict in the performance of his duties, and wrongfully consuming alcohol, to the more serious offenses of dishonorably failing to pay a debt, operating a vehicle after consuming alcohol, and causing a vehicle wreck resulting in personal injury to a contracted interpreter and severe damage to the vehicle. 

3.  As a result of the applicant's pattern of misconduct, specifically his two instances of Articles 15 with multiple offenses in each, his chain of command recommended his discharge from the Army.  The applicant subsequently participated in an administrative separation board.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the administrative separation board.  The findings of the administrative separation board were supported by a preponderance of the evidence with no material error that affected the findings and recommendations.  The actions taken during the proceedings complied with legal and procedural requirements of applicable regulations and the recommendations of the board were consistent with the findings.  

4.  The separation authority thoroughly reviewed the commander's inquiry into the 4 May 2006 incident, sworn statements, affidavits, and the recommendations by the chain of command.  There is no evidence that any statement was falsified or that the applicant's chain of command singled him out.  Furthermore, the separation authority is not bound by the recommendations of the administrative board proceedings.  When he approved the applicant's discharge, the separation authority in effect waived the rehabilitative transfer requirements.  

5.  The evidence of record further shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Furthermore, the applicant’s narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 14, AR 635-200 due to misconduct, commission of a serious offense.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct, commission of a serious offense.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct (Serious Offense).”

6.  The ADRB determined that the overall length of the applicant's service to include his combat service mitigated the discrediting entries in his service record. Accordingly, the ADRB granted the applicant partial relief in the form of an upgrade to his character of service to general, under honorable conditions.  However, the ADRB determined that the reason for discharge was equitable and voted not to change it.

7.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is neither entitled to an honorable discharge nor to consider his discharge null and void or have his discharge expunged from his records.  

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)                                         AR20080015676



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ABCMR Record of Proceedings (cont)                                         AR20080015676



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