BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110021941 


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 his general discharge from the U.S. Army Reserve (USAR) be upgraded to honorable.

2.  The applicant states:

* a general officer lied at his discharge hearing board
* the general officer also lied to Congress during a hearing regarding a prison he was responsible for
* the general officer lived a double standard with his command at GTMO (Guantanamo Bay, Cuba)
* he disregarded regulations to accomplish his personal agenda while living in GTMO
* witnesses for Ms. C-- were having a sexual relationship with her
* the general officer did not lead by example
* at one time he owed the general officer over $40,000.00 from betting at golf
* there was no counsel available for any Soldiers at GTMO, all the Staff Judge Advocates were for the command
* he had no opportunity to obtain any witness statements that would have made a difference in the Article 15 procedure
* his attorney suggested he say nothing about the general officer or Ms. 
     C--'s relationship with others 



3.  The applicant provides:

* letter, dated 10 December 2009, he wrote to a Member of Congress
* USAR discharge orders, dated 8 September 2005
* Award certificate and citation for the Bronze Star Medal
* Promotion memorandum, dated 17 April 2002
* DA Form 638 (Recommendation for Award)
* Orders for the Army Achievement Medal (Third Award)
* DA Forms 1059 (Service School Academic Evaluation Report), dated 
      8 February 1990 and 14 March 1992
* Reserve Component Infantry Officer Advanced Course Phase Completion Notice  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having prior service in the Regular Army, Army National Guard, and USAR, the applicant was promoted to lieutenant colonel in the USAR on 12 March 2002.

3.  On 20 June 2003, nonjudicial punishment (NJP) was imposed against the applicant for violating a lawful general order on various occasions by being present in a female's quarters after midnight, misuse of rank and position to intimidate junior enlisted members on various occasions, and wrongfully had sexual intercourse with a female, not his wife.  He elected not to demand trial by court-martial.

4.  On 20 June 2003, he was issued a general officer memorandum of reprimand for wrongful sexual intercourse with a female, not his wife, and intentionally misusing rank and position to intimidate junior enlisted personnel.      

5.  On 14 November 2003, he was notified of his pending separation under the provisions of Army Regulation 135-175 (Separation of Officers), chapter 2, by reason of moral or professional dereliction. 

6.  He consulted with legal counsel, was advised of the impact of the discharge action, and requested a hearing by an officer administrative separation board, and did not submit a statement in his own behalf.

7.  On 27 July 2004, a board of officers convened.  The board determined he violated a lawful general order, on various occasions wrongfully had sexual intercourse with a woman not his wife, and on various occasions he misused his rank and position to intimidate junior enlisted members.  The board recommended he be discharged from the service in accordance with Army Regulation 135-175, paragraph 2012 and he be separated with a general discharge.   

8.  On 6 September 2005, the separation authority approved the findings and recommendations of the board and directed the issuance of a general discharge.

9.  On 7 October 2005, he was discharged under honorable conditions (general discharge) from the USAR.  

10.  On 4 May 2007, the Army Discharge Review Board denied the applicant's request for an honorable discharge.  

11.  Orders, dated 14 February 2012, show he will be placed on the retired list in the rank of lieutenant colonel effective 24 June 2012.

12.  Army Regulation 135-175 sets forth the basic authority for the separation of officer personnel in the Army National Guard and USAR.  Chapter 2-12, in effect at the time, established policy and prescribed procedures for the involuntary separation of members for moral or professional dereliction.  Moral and professional dereliction included:  intentional failure to meet personal financial obligations; mismanagement of personal affairs to the discredit of the service; intentional omission or misstatement of facts in official statements or records for the purpose of misrepresentation; acts of personal misconduct; homosexuality; intentional failure to participate satisfactorily in required Individual Ready Reserve training; conviction by civil court of a felony resulting in confinement; and, conduct unbecoming an officer.  Officers discharged for any of the following reasons may be furnished an honorable or general discharge certificate, or other than honorable conditions discharge.  

13.  Army Regulation 135-175 provides an honorable discharge is a separation from the United States Army with honor. The issue of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, he chose to accept NJP action.  In addition, these contentions could/should have been addressed during his hearing by an officer administrative separation board.  

2.  His record of service includes one NJP and a general officer memorandum of reprimand.  He was a lieutenant colonel in the USAR.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and is insufficiently meritorious to warrant an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, 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 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)                                         AR20110021941





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ABCMR Record of Proceedings (cont)                                         AR20110021941



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