IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20090003946 


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 reconsideration of his earlier request for correction of his military records to upgrade his under other than honorable discharge to a general, under honorable conditions discharge.

2.  The applicant states that his record of service is satisfactory enough to warrant a general discharge but not sufficiently meritorious to warrant a fully honorable discharge.  During his 6 years of service he deployed to Iraq for 
15 months as an infantry officer where he earned the Combat Infantryman Badge and was awarded the Army Commendation Medal.  Also, during his service he was awarded two Army Achievement Medals, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, and Parachutist Badge.  He contends that he received outstanding Officer Evaluation Reports.  Since his discharge in May 2007, he has been working in Iraq as an Army contractor.  He asks that the Board reconsider his request for an upgrade of his discharge based on his duty performance rather than an isolated incident.  

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); five DA Forms 67-9 (Officer Evaluation Report) covering his duty performance from 25 May 2003 through 1 October 2006; permanent orders awarding him the Combat Infantryman Badge and the Parachutist Badge;  two Letters of Identification, dated in 2007 and 2008; page 3 of the Army Discharge Review Board (ADRB) – Case Report and Directive, dated 4 June 2008; the applicant's official photograph dated 5 October 2004; and two letters of support, dated 19 and 24 January 2009.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080015625, on 23 December 2008.

2.  The two Letters of Identification, page 3 of the ADRB – Case Report and Directive, the applicant's official photograph, and the two letters of support are new evidence that requires consideration by the Board.

3.  On 2 March 2007, elimination proceedings were initiated against the applicant for misconduct and moral or professional dereliction.  He had repeatedly engaged in an improper relationship with a married woman while her husband was deployed to Iraq.  The applicant had violated clear and direct orders to have no contact with this woman.  He also attempted to improperly influence the woman's statements to the investigating officer.  The applicant had accepted nonjudicial punishment proceeding for this misconduct.

4.  On 13 March 2007, the applicant submitted a request for resignation in lieu of elimination.  He acknowledged that he could be discharged with an honorable, general, or an under other than honorable conditions characterization of service, as determined by the Department of the Army. 

5.  On 15 March 2007, the Commanding General, Fort Riley, Kansas, after considering the evidence, determined that elimination was warranted and recommended that the applicant be separated with a general, under honorable conditions discharge.

6.  On 4 April 2007, the Department of the Army Ad Hoc Review Board reviewed the applicant's resignation in lieu of elimination based on misconduct, moral or professional dereliction.  It was accepted.  By order of the Secretary of the Army, he was discharged from the U.S. Army with an under other than honorable conditions characterization of service.

7.  On 4 June 2008, the ADRB considered the applicant's request for an upgrade of his discharge.  The applicant's considered the applicant's faithful and honorable service, as well as his record of misconduct.  The analyst concluded that his characterization of service was too harsh and, as a result, was inequitable and, therefore, recommended that the applicant's characterization of service be upgraded to general, under honorable conditions.  However, the ADRB, after carefully examining the applicant's record of service during the period under review and considering the analyst's recommendation and rationale, determined that the discharge was both proper and equitable and voted to deny relief.

8.  On 23 December 2008, this Board considered the applicant's request for an upgrade of his discharge.  However, the Board determined that there was no error or injustice and denied the request.

9.  The two Letters of Identification, dated in 2007 and 2008, show that the applicant was a contract employee who was authorized travel to and from Iraq; he was authorized base support; and he was considered to be mission essential.

10.  The two letters of support, dated in January 2009, were written by Soldiers assigned for duty with the Multi-National Division - Baghdad, Camp Liberty, Iraq.  These letters are essentially employment recommendations wherein the authors have stated that the applicant has done an excellent job while working as a Department of Defense civilian contractor in support of Operation Iraqi Freedom. 

11.  The official photograph, dated 5 October 2004, shows the applicant as a first lieutenant.

12.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides, in pertinent part, that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. Officers 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; 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation was based on a single incident and not on his entire record.  He further contends that the quality of his service is satisfactory enough to warrant an upgrade to general, under honorable conditions.

2.  The evidence shows that the applicant was discharged with an under other than honorable conditions discharge for repeatedly engaging in an improper relationship with a married woman while her husband was deployed.  Although the Commanding General, Fort Riley, Kansas, recommended he be separated with a general, under honorable conditions discharge, after considering the applicant's entire record both the Ad Hoc Review Board and the ADRB made conscious determinations that his separation was both proper and equitable and denied the applicant relief.

3.  The letters of support do not sufficiently mitigate the applicant's repeated misconduct.

4.  The applicant did not deny his misconduct.  He clearly acknowledged at the time of his request to resign that he could receive an under other than honorable conditions characterization of service. 

5.  The applicant's record of good service is greatly diminished by his repeated misconduct that resulted in nonjudicial punishment and a discharge under other than honorable conditions.   He has not provided any sufficiently mitigating argument that would warrant an upgrade of his discharge.

6.  In view of the above, there is no basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080015625, on 23 December 2008.




      _______ _   _X______   ___
               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)                                         AR20090003946



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ABCMR Record of Proceedings (cont)                                         AR20090003946



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