IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090013661 


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 narrative reason and separation authority be changed to "failure of a course at a service school for academic reasons by a probationary or non-probationary Regular Army officer" under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2a(11), or "failure of a course at a service school" under the provisions of Army Regulation 600-8-24, paragraph 4-2c(6).

2.  The applicant states that the main reason for his discharge was his noncompliance with the Military Intelligence (MI) course academic requirement and he was recycled/relieved from the MI course.  About a month later, charges for plagiarism were brought against him because he had forgotten to quote the book's author on his battle analysis paper.  The applicant continues by stating there is a probability that the documents submitted with this application were not readily available or not considered by the Army Discharge Review Board (ADRB).  The ADRB indicated his discharge was "too harsh."  He states he served his country honorably during peace and war time (Gulf War) when he was on active duty as an enlisted Soldier in the U.S. Navy and the Texas Army National Guard.  He states he is willing to serve his country as an Army officer and that he was scheduled to graduate in August 2009 with a master's degree in literature.

3.  The applicant provides two Fort Huachuca Forms 350-2-R-E (Student Recycle/Relief), dated 29 May 2008 and 26 June 2008; a memorandum, dated 15 August 2008; a memorandum, dated 24 September 2008; and an ADRB decisional document in support of his application.
CONSIDERATION OF EVIDENCE:

1.  The applicant completed enlisted service in the U.S. Navy and the Army National Guard from May 2000 to May 2007.  On 12 May 2007, he was appointed as a Reserve second lieutenant in the Military Intelligence Branch with a concurrent call to active duty.

2.  On 10 March 2008, the applicant was assigned to the 304th MI Battalion at Fort Huachuca, AZ, to attend the MI Basic Officer Leader Course (MIBOLC) Class 08-003.

3.  The applicant's recycle/relief form, dated 29 May 2008, shows he was recycled to the MIBOLC Class 08-004 in May 2008 due to academic failure.

4.  his recycle/relief form, dated 26 June 2008, shows he was relieved from the MIBOLC Class 08-004 because he plagiarized his battle analysis paper.

5.  On 25 August 2008, the applicant was notified of initiation of separation action under the provisions of Army Regulation 600-8-24, paragraph 4-2(b)(14), by reason of misconduct for moral or professional dereliction.  He was directed to show cause for his retention on active duty for being recycled from the MIBOLC for failing to achieve a minimum passing score on the Phase IV individual battle update brief on two consecutive attempts.  On 23 June 2008, his chain of command discovered the applicant had turned in a plagiarized report for which he was subsequently relieved from the MIBOLC.  He was advised that he could submit a voluntary resignation in lieu of further elimination, request discharge in lieu of elimination, or submit a written rebuttal.

6.  The applicant acknowledged receipt of the officer elimination memorandum on 26 August 2008 and elected to submit a statement of rebuttal.  His chain of command recommended that his rebuttal statement be disapproved.

7.  On 1 October 2008, the Commander, U.S. Army Intelligence Center and Fort Huachuca, recommended the applicant be eliminated from the Army per Army Regulation 600-8-24, chapter 4, with a characterization of service of general under honorable conditions.

8.  On 12 November 2008, the Ad Hoc Review Board and the Deputy Assistant Secretary of the Army (Army Review Boards) approved the recommendation of the Army Ad Hoc Board and directed that the applicant be discharged from the Army with a characterization of service of general under honorable conditions.

9.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "Army Regulation 600-8-24, paragraph 4-2b."

10.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "JNC."

11.  Item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 shows the entry "unacceptable conduct."

12.  On 8 June 2009, the ADRB upgraded the applicant's characterization of service from general under honorable conditions to fully honorable.  The ADRB determined that the reason for discharge was proper and equitable and voted not to change it.

13.  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.  Paragraph 4-2b specifically governs elimination for misconduct for moral or professional dereliction or in the interests of National Security.

14.  Paragraph 4-2a(11) of Army Regulation 600-8-24 governs elimination for failure of a course at a service school for academic reasons by a probationary or non-probationary Regular Army officer.

15.  Paragraph 4-2c(6) of Army Regulation 600-8-24 gives one of the reasons for an officer's record to be reviewed for considering termination of appointment as failure of a course at a service school.

16.  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 "unacceptable conduct" and that the authority for separation under this SPD was "Army Regulation 600-8-24, paragraph 4-2b."

17.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements regarding his narrative reason and separation authority are acknowledged.  However, his DD Form 214 shows he was discharged from active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2b, with a separation code of "JNC" (unacceptable conduct) in accordance with the governing regulation.

2.  The applicant's discharge proceedings under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for misconduct for moral dereliction is administratively correct and in conformance with applicable regulations.

3.  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation was taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation and separation authority as provided in Army Regulation 635-5-1 was properly entered on his DD Form 214.

4.  It is noted that the ADRB upgraded the applicant's character of service from general under honorable conditions to fully honorable; however, the ADRB found the reason for his discharge to be proper and equitable.  The decision of the ADRB to upgrade the character of his service does not serve as a basis to change the reason for his discharge.

5.  The applicant has failed to show through the evidence submitted or the evidence of record that the narrative reason for separation and separation authority issued to him were in error or unjust.  Therefore, there is no basis for deleting these items from his DD Form 214.

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.



      _____________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)                                         AR20090013661



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ABCMR Record of Proceedings (cont)                                         AR20090013661



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