IN THE CASE OF: 

		BOARD DATE: 30 August 2012

		DOCKET NUMBER:  AR20120003600 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records by setting aside the nonjudicial punishment (NJP) he received under the provisions of Article 15, Uniform Code of Military Justice (UCMJ); reinstating him to the rank of private first class (PFC); and upgrading his discharge under honorable conditions to fully honorable, thereby changing his reentry code and separation code.

2.  Counsel states:

	a.  The applicant enlisted in the Army at 17 years of age.  He spent the entire year with his recruiter preparing for his goal to be an Army ranger.  He was a very dedicated Soldier during basic training, advanced individual training, and airborne school.  He had many friends and no disciplinary problems.

	b.  He was heartbroken when he did not make it through the 3-week Ranger Indoctrination Program (RIP).  However, he made such a good impression on the RIP staff that he was permitted to remain in the 4th Ranger Training Battalion (RTB) in order to try to complete the program in the future.

	c.  Approximately 3 months after being assigned to the 4th RTB, the applicant began to experience problems with another Soldier who was senior to him.  That Soldier took it upon himself to make the applicant's life miserable causing the applicant to look bad.

	d.  Being young at the time, the applicant made matters worse for himself by getting visibly upset, which resulted in more problems for him.  The company leaders saw the applicant constantly being punished which led to the impression that he must have been a trouble maker.

	e.  After several months, the applicant began to seek a transfer to another unit.  After he realized the transfer was not likely to happen, he spoke to a sergeant (SGT) in the unit, who told him he should show a change of attitude and the other Soldier would relent.

	f.  He became depressed and confused about how his plans and goals had gotten so far off track.  His depression began to affect his duty performance.  While he didn't realize it at the time, he was mentally distancing himself from the reality of the situation.

	g.  He experienced a situation that was "the proverbial straw that broke the camel's back" when he was ordered to a unit urinalysis and he had difficulty providing a sample.  Despite his best efforts, he could not urinate.  A staff sergeant (SSG) ordered him to do scissor kicks and "run up and down the line of people in the hallway while drinking from his canteen."  He finally was able to provide the sample but felt humiliated and made up his mind to find a way out of the hostile environment.

	h.  The applicant's only friend at the time was Specialist (SPC) S____, who turned out to be a terrible influence on him.  Apparently SPC S___'s spouse was a "celebrity-type exotic dancer who performed 'travelling shows' in different venues."   The applicant attended one of her shows at a club in Atlanta.  SPC S____ asked the applicant to film his wife and the environment of the strip club.  The applicant was approached by Army Criminal Investigation Command (CID) agents about his relationship with SPC S____.  He cooperated fully with the investigators and was not personally found responsible for any wrongdoing.

	i.  SPC S____ began to intimidate the applicant after he learned the applicant was speaking to CID.  He also mentioned to the applicant that he was thinking of telling the commander he was homosexual in order to get out of his military obligation.  SPC S____ pressured the applicant to tell their commander he was bisexual and involved with SPC S____ as a means for both of them getting discharged from the Army.  The idea of getting out of his situation consumed him and, coupled with the threats from SPC S____, he decided to tell his commander he was bisexual.

	j.  On 2 August 2001, the applicant told his commander, Captain (CPT) B____, that he was bisexual.  CPT B____ told the applicant he was brave for coming forward and explained that he would soon be discharged.   As soon as he left the commander's office he felt sick to his stomach.  He was not the type of person who told lies.  He spoke with SPC S____ who threatened him and he returned to CPT B____'s office to confess his lie.

	k.  The applicant received a company-grade Article 15 for making a false official statement.  He was reduced to private (PV2).  After this incident, the applicant lost all hope of his dream of becoming one of the Army's elite Soldiers.

	l.  While the purpose of NJP is to correct, retrain, and reform, the applicant did not receive any positive reinforcement from his command about getting back on track.  In fact, his actions in coming forward and admitting his mistake worsened the stigma that he was a problem Soldier.  About a month later he received a second Article 15 for disrespect in deportment toward a noncommissioned officer (NCO) who was correcting his behavior.  He realized he deserved the punishment; however, he felt everyone had given up on him and he had simply given up on caring.

	m.  He was subsequently recommended for separation based on the "commission of a serious offense," the false official statement he made to his commander that he was bisexual.  He was recommended for and received a general discharge.

	n.  Within 2 months of leaving the service, the applicant began working on his bachelor's degree.   A short time later he moved to Istanbul, Turkey, where he spent 2 years as the Director of Marketing for a software company.  There he finished his master's degree.  He relocated to Boston to continue work on a second master's degree at Harvard University.

	o.  More recently, the applicant finished a 16-month contract in September 2011 with the veterans' law office of Bergman and Moore, Limited Liability Company (LLC).  He acted as the manager of public relations for the firm and was proud to have served his fellow veterans by helping them with their appeals before the Board of Veterans' Appeals and the U.S. Court of Veterans Claims in Washington, DC.  He recently founded a defense contracting company.  In addition, he serves as the director of communications at the Council on Competiveness.  He has been working on a program that provides jobs for returning veterans which can be read about at:  http://www.uravip.org.

	p.  He petitioned the Army Discharge Review Board (ADRB) in September 2010 for a discharge upgrade.  The ADRB denied his request, and found his separation both proper and equitable.  The vote, however, was extremely close, as two ADRB members voted to upgrade his discharge and three did not.

	q.  The applicant clearly was a hard-working Soldier who was cast aside after failing to pass the RIP.  Instead of being mentored, he was ridiculed and humiliated by his team leader and NCO's.  He takes full responsibility for his actions, and can clearly see they were a result of his youth and immaturity at the time.

	r.  The applicant respectfully requests an upgrade of his discharge based on the facts surrounding the incidents in question and his entire service.  He regrets his actions and requests leniency from the Board on the grounds of his youth and immaturity at the time.

3.  Counsel provides copies of:

* the applicant's pertinent service record documents
* letters of recommendation from Bergman and Moore, LLC, dated 10 December 2010 and 12 August 2011
* letter of recommendation from Mr. S____ I____, dated 29 November 2010
* letter of recommendation from Mr. G____ C____ IV, undated
* letter of recommendation from Mr. A____ S. J____, undated
* the applicant's Master of Arts in Diplomacy Certificate from Norwich University
* the applicant's Master of Liberal Arts Certificate from Harvard University
* applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army 15 June 2000.  He completed training, including airborne training, and was awarded military occupational specialty 11B (Infantryman).

2.  His DA Form 2-1 (Personnel Qualification Record – Part II), item 17 (Civilian Education and Military Schools), shows he attended RIP for 3 weeks and did not complete the course.  Item 35 (Record of Assignments) shows he was assigned to Headquarters and Headquarters Company, 4th Ranger Training Battalion, Fort Benning, GA, effective 18 December 2000 where he remained until he was discharged.

3.  He accepted NJP on 29 August 2001 for making a false official statement in violation of Article 107, UCMJ, and on 27 September 2001 for being disrespectful toward an NCO in violation of Article 91, UCMJ.  He did not appeal either NJP.

4.  On 24 October 2001, the applicant's company commander notified him that he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for commission of a serious offense, the false statement the applicant made to CPT R____ K. B____ on 2 August 2001.  The applicant told CPT B____ he was bisexual, a statement he later withdrew.  The commander recommended a general discharge.  The applicant acknowledged receipt of this action.

5.  The applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.  He indicated he understood he might encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He also indicated he understood that if he received a discharge certificate/character of service which was less than honorable, he could apply to the ADRB for upgrading; however, he acknowledged that an act of consideration by that board would not imply that his discharge would be upgraded.

6.  The intermediate commander concurred and the appropriate authority approved the recommendation for discharge on 9 November 2001and directed that the applicant receive a general discharge.

7.  The applicant was discharged under honorable conditions on 16 November 2001.  He completed 1 year, 5 months, and 2 days of net active service.

8.  On 26 August 2011, the ADRB denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.

	b.  Specific categories include commission of a serious offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the Manual for Courts-Martial.

   c.  Paragraph 3-7a states 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.

10.  The maximum punishment for violation of Article 107, UCMJ, is a dishonorable or bad conduct discharge, 5 years of confinement, and total forfeiture of all pay and allowances.

11.  Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice.

	a.  The basis for any set-aside action is a determination that under all of the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

	b.  The setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends through counsel that the NJP he received should be set aside; he should be reinstated to the rank of PFC; and his general discharge should be upgraded to honorable, thereby changing his reentry and separation codes.

2.  Counsel argues the applicant was only 17 years of age when he joined the Army.  He was heartbroken when he did not make it through the RIP.  He remained in the ranger battalion, but had problems with another Soldier who was senior to him.  That led to the unit leaders thinking he was a trouble maker.  He became depressed.  He made a false statement to his commander but later admitted to the lie.  He did not receive any positive reinforcement from his command.  

3.  His reported post-service accomplishments are noteworthy.  He has completed two master's degrees, founded a defense contracting company, and served in assisting veterans.  The applicant can be very proud of his post-service accomplishments; however, these matters do not mitigate his misconduct while in the service.

4.  The applicant accepted NJP on two occasions.  The NJPs were imposed in compliance with applicable laws, regulations, and policies.  There is no evidence of any substantive violation of any of the applicant's rights.  The applicant made a false official statement in order to get out of the Army.  The fact that he received NJP and was discharged for making the false official statement rather than being discharged for the behavior he claimed does not make either the NJP or the discharge unjust.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

6.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

7.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20110005717



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003600



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1