IN THE CASE OF:	  

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120021871


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 upgrade of his general discharge to an honorable discharge.

2.  He provides a brief summary of his military history from the time he enlisted in the U.S. Army until he was commissioned as a second lieutenant (2LT).  He adds during his wife's pregnancy, he was deployed to Iraq and assigned as a platoon leader for A Company, 2nd Platoon, 1st Battalion, 28th Infantry Regiment.  His wife was fighting an alcohol addiction and she was doing well until shortly after the birth of their daughter.  After serving 6 months as a platoon leader, however, due to a relapse of his wife's drinking problem and since there were several captains (CPT) in the battalion without platoon time, he was informed of his reassignment to the S-3 shop where he remained for the duration of the deployment.

3.  He maintains that 1 month after returning from deployment the battalion commanders changed and the new commander began making drastic changes.  The new battalion commander had a zero tolerance policy for mistakes by any Soldiers.  He believes the new battalion commander's dislike for him combined with his wife's drinking problem and the commander's lack of effort to help him and his family was the sole motivation and reason behind his discharge.

4.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE

1.  In addition to the applicant's request for a discharge upgrade, counsel requests the following:

* change of the applicant's separation authority, separation code, and narrative reason for separation to hardship or Secretarial authority
* remove or redact his DA Form 67-9 (Officer Evaluation Reports (OER)) for the periods 27 July 2008 through 31 October 2008 and 1 November 2008 through 30 October 2009
* promote the applicant to CPT retroactive to 19 August 2009

2.  Counsel states:

* the applicant's wife had a history of alcoholism, she had been sober for
3 years, and she was doing very well during her pregnancy when the applicant deployed
* after the birth of their daughter the applicant's spouse returned to alcohol
* the applicant had been a platoon leader for 6 months when he was forced to relinquish his position due to his spouse's relapse
* he was reassigned to the S-3 where he remained until the end of his deployment
* the applicant's wife was sexually assaulted during the time the applicant was on a pass to take his daughter to his brother's house
* the chain of command handled the incident and the perpetrator was convicted and discharged
* on 30 September 2008, the applicant told the executive officer (XO) that he intended to run with his squad
* later he was approached by the battalion S-3 as he was doing physical training (PT) with the XO and another officer
* the applicant did not intend to lie, but was caught off guard
* the applicant ran with his squad and later reported the incident to the XO
* an Army Regulation 15-6 investigation was conducted and he was reassigned as the assistant S-4 and later as the assistant S-1
* upon arrival at the National Training Center, Fort Irwin, CA in February - March 2009, he was notified of his promotion to CPT
* the Battalion commander immediately removed him from his position as platoon leader and directed a relief for cause OER
* the applicant was reassigned to the S-3 shop and he was denied a rehabilitation transfer
* 
the applicant was condemned by his chain of command because of his wife's alcohol problem
* he was separated from the service for false allegations and minor infractions for which he received no disciplinary action
* he met the criteria for a hardship discharge but was denied
* the applicant's lapse in performance was the result of overwhelming pressures in his personal life

3.  Counsel provides:

* Applicant's self-authored statement
* Army Regulation 15-6 investigation with supporting documents
* Memorandum, subject:  Request for Officer Candidate School (OCS), (applicant's name), dated 26 October 2005, with OCS supporting documents
* Honorable Discharge Certificate, dated 17 September 2004
* U.S. Army Human Resources Command (HRC) Assignment Instructions, dated 24 March 2006
* Superior Court of Washington Pierce County, Order of Child Support
* Army Discharge Review Board (ADRB) Record of Proceedings, dated 
29 February 2012, with supporting documents
* DA Forms 4856 (Developmental Counseling Form)
* Memorandum, subject:  Temporary Suspension from Rifle Platoon Leader Duties, dated 30 September 2008
* Memorandum from the Department of Social and Health Services, dated 18 June 2009
* Elimination Board Proceedings
* Order Number 231-052, issued by HRC, dated 19 August 2009
* OERs
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 November 2009
* Officer Record Brief (ORB)
* Memorandum, subject, Battalion Staff Duty Officer (SDO) Responsibilities dated 14 January 2009, with SDO log, dated 16 April 2009 
* Sprint Call Details listing
* DA Form 61 (Application for Appointment)
* DA Form 362 (Statement of Charges), dated 20 November 2009
* Six supporting statements

CONSIDERATION OF EVIDENCE:

1.  After serving honorably for 4 years, 8 months, and 23 days as an enlisted Soldier, the applicant was commissioned as a 2LT on 24 August 2006 and entered active duty that date.

2.  On 30 September 2008, the applicant was temporarily suspended from rifle platoon leader duties.

3.  On 30 September 2008, an investigating officer (IO) was appointed to inquire into the circumstances surrounding an alleged false official statement by the applicant to the battalion S-3 on 30 September 2008 regarding his actions during PT.  On 6 October 2009, the IO rendered his findings and recommendations.

	a.  The IO found that on 30 September 2008 the applicant approached the XO and another officer to ascertain what they were doing for PT.  He was informed they were going to run the airfield track and in turn informed them he was going to conduct PT with one of his squads.  Shortly thereafter, the S-3 observed him running by himself which is a violation of the Battalion's PT guidance.  The S-3 stopped him and asked what his platoon was doing for PT and the applicant informed him that the platoon was doing squad PT.  When questioned about why he was not doing PT with them, he informed the S-3 that the XO had told him to do officer PT with him and another officer.

	b.  The IO recommended a Brigade Commander Letter of Reprimand be placed in the applicant's local file with the instructions that it would be placed in his permanent record if any further adverse action occurred during his tour in the unit.  He also recommended the applicant be transferred to another battalion within the brigade for rehabilitation.  It was the IO's opinion that the applicant's credibility would continue to be questioned within the battalion if he remained in the battalion.  The IO also opined the applicant was not being maliciously deceptive in the two different false statements he made, but he panicked and said the first thing that came to mind.  The IO added the applicant admitted the intense personal issues with his wife's alcohol problems and the ongoing U.S. Army Criminal Investigation Command investigation into the alleged rape of his spouse could have been contributing factors in his reaction to the S-3's question.

4.  The commander approved the IO's findings and recommended the following:

* permanently remove the officer from his current duties as a B Company Platoon Leader
* keep in the battalion; move to a staff position with no supervisory responsibilities for Soldiers
* 
battalion commander counseling statement to the officer

5.  On 8 October 2008, the Brigade Judge Advocate reviewed the IO's investigation and determined it was legally sufficient.  He stated the findings were supported by evidence contained in the packet and the recommendations were consistent with the findings.

6.  A memorandum, subject:  Army Regulation 15-6 Investigation; Notice of Intent to Relieve for Cause, dated 14 October 2008, stated the memorandum served as a notice of the commander's intent to relieve the applicant for cause from his duties as a platoon leader.  The memorandum indicated the applicant was provided a copy of the 15-6 investigation.  The memorandum also stated he had 10 working days from the date of the memorandum to reply in writing and provide any rebuttal material for consideration.

7.  On 14 October 2008, the applicant was counseled by his battalion commander concerning making a false statement to the battalion S-3.  The commander stated that based on the findings and recommendations of the
15-6 investigation, he decided to continue the applicant's temporary suspension from his platoon leader duties.  He further stated the applicant would be temporarily reassigned as the assistant S-1.  The applicant signed the counseling statement on 14 October 2008 indicating he agreed.

8.  On 2 February 2009, the battalion commander informed the applicant he was being relieved from his duties as platoon leader for making a false statement.  The commander further directed a relief for cause OER be initiated.

9.  On 1 March 2009, the applicant requested a rehabilitative transfer in accordance with the findings and recommendations of the IO during the 15-6 investigation.  However, his request was denied by the battalion commander who was also his senior rater who directed the applicant's relief for cause OER.

10.  An OER for the period 27 July 2008 through 31 October 2008 shows the applicant was rendered a Relief for Cause report while assigned as the Stryker Brigade Combat Team (SBCT) Platoon Leader, B Company, 1st Battalion,
38th Infantry Regiment, 4th Brigade, 2nd Infantry Division, Fort Lewis, WA.  He was rated by the company commander, a CPT, and senior rated by the battalion commander, a lieutenant colonel, for a 3-month rating period.  The rater's, senior rater's, and applicant's signatures are dated 12 February 2009, 11 March 2009, and 19 March 2009, respectively.  This OER shows in:

	a.  Part I (Administrative Data):

(1)  item j (Rated Months) the entry "3."

		(2)  item k (Nonrated Codes) a blank (no entry).

	b.  Part II (Authentication), item d (This is a referred report, do you wish to make comments?) an "X" in the "No" block.

11.  On 13 February 2009, the applicant received an initial counseling from the
S-3 that shows he was the applicant's rater.  The applicant's duty title was listed as "Assistant S-3, Night Battle Captain."  He also received four adverse performance counseling statements from the S-3 that he signed and indicated he agreed.  He did not provide any remarks.  The counseling statements are as follows:

	a.  31 March 2009

* failure to respond to tasks within the time standards
* failure to be at place of duty
* failure to keep chain of command notified of his whereabouts

	b.  21 April 2009

* failure to report for duty in accordance with standards – unshaven
* failure to follow explicit instructions to ensure Arab speakers were provided with the required protective equipment prior to moving them to training – no helmets for civilian role players

	c.  21 April 2009

* failure to report to Battalion Staff Duty on time for duty as the SDO on 15 April 2009
* once on duty he departed the battalion and went home
* failure to keep the Staff Duty Noncommissioned Officer (SDNCO) informed of his whereabouts and then failed to respond to four phone calls

	d.  1 May 2009 – failure to follow instructions; continued to perform PT on his own in violation of the S-3's guidance and the battalion's PT policy

12.  On 18 August 2009, the acting commander, a brigadier general, initiated procedures to eliminate the applicant from the service.  The acting commander stated his actions were based on the following:

	a.  False official statements on two separate occasions.  On 2 April 2009, while serving in Headquarters and Headquarters Company, he lied to his company commander by responding in the affirmative when asked if all the convoy dispatches were complete and signed.  In fact, at least two vehicles had dispatches that had not been signed.  Additionally, on 30 September 2008, he lied to the battalion S-3 regarding conducting PT alone in violation of battalion policy.

	b.  Failure to obey a lawful order.  On divers occasions between
30 September 2008 and 1 May 2009, he continued to conduct PT on his own in violation of the battalion's PT policy.  Additionally, on 21 April 2009, he failed to provide civilian role players with helmets for movement in military vehicles despite explicit instructions to do so.

	c.  Failure to repair.  On divers occasions between his arrival in 1st Battalion and the present, he continually failed to be at his appointed place of duty.

	d.  Substandard performance.  He continually failed to respond to tasks within the time standard given to him and he continually failed to be at his appointed place of duty.  When he was not at his appointed place of duty, he failed to keep his chain of command notified of his whereabouts.  Specifically on 21 April 2009, he failed to report on time for SDO duties.  Once there, he departed the battalion's area of operation and returned home.  He did not inform the SDNCO of his whereabouts and he failed to respond to multiple phone calls.

13.  In conjunction with the elimination action, a DA Form 268 (Suspension of Favorable Personnel Actions) was initiated.

14.  Order Number 231-052, dated 19 August 2009, promoted the applicant to CPT, effective and with a date of rank of 1 September 2009.

15.  On 14 September 2009, the applicant responded to the acting commander's elimination.  He stated the following.

	a.  In regard to making false official statements, the applicant argued that in accordance with the U.S. Military Manual for Courts-Martial, for a statement to be considered false or a lie, it must be proven that the person making the statement was intending to deceive through the use of the false statement.  He offered the 15-6 investigation concluded that he was not being intentionally or maliciously deceptive.  He maintained he changed his mind based on the circumstances that day.

	b.  He stated when discussing the convoy situation with the company commander, he did not intend to be deceptive in any way.  He added that the two vehicles in question were borrowed from other companies and the dispatches were signed.  However, he looked at the wrong signature block.  The vehicles were brought to the vehicle staging area after everyone involved in the convoy had been released and after he had checked all the other dispatches and reported to the commander.  The dispatches in question were checked the next day, before the convoy departed.

	c.  He continued by discussing his request for rehabilitative transfer and the battalion commander's denial.  He stated when he asked the commander what he could do to recover from the incident the commander suggested he resign his commission or get out of combat arms.  He offered that following his relief, he was first assigned as the assistant S-4 and later as the assistant S-1.  As the battalion's postal officer he received no negative counseling concerning his performance.  Additionally, during the battalion's NTC rotation in February – March 2009, he was reassigned to the S-3 shop under the S-3 officer who was directly involved in the incident that caused him to be relieved.  He stated he did not receive any negative counseling statements.

	d.  The applicant offered, in effect, that in accordance with the 50th edition of the Army Officer's Guide, officers are often allowed privileges regarding the use of their time.  He said the S-3 was informed by the company commander at the daily leader's huddle that the applicant was the convoy officer in charge and most of his time that day would be spent in the motor pool.  However, he was told during the counseling session that the motor pool was not his place of duty and he was to be in the S-3 shop.

	e.  The applicant stated that he kept his chain of command informed when he was not in the shop.  He stated the statement on the 31 March 2009 counseling was in response to a call placed to the shop phone when he told an NCO that his wife's medical appointment was running late and he was at home watching the baby.  He asked the NCO to relay the message to the S-3 since he did not have his phone number.

	f.  He also maintained that the counseling statement regarding his performance as SDO on 21 April 2009 was also inaccurate.  He explained he was placed in charge of providing transportation to 20 role players.  He was told to ensure that the role players who were going to be interpreters and the Iraqi Army for the day had Kevlars so they could ride in military vehicles.  However, there were only 19 Kevlars.  After dropping off several of the role players at 

different sites, he was later told by an NCO that the remaining role players were Iraqi Army and would not be riding in vehicles so Kevlars would not be needed.

	g.  He offered that the counseling statement, dated 1 May 2009, was the S-3's and the battalion commander's way to add more paperwork to his file to request an elimination action.  He stated the counseling statement was written on the
S-3's last day in the battalion.  He explained he was conducting PT with a battle buddy, but the S-3 insisted that the battle buddy had to be from the S-3 shop which was contrary to his initial counseling.

16.  Orders Number 259-05, dated 16 September 2009, revoked the applicant's promotion to CPT.  The special instructions indicated that a flag was initiated on 19 August 2009.

17.  On 9 November 2009, the Department of the Army Ad Hoc Review Board reviewed the applicant's elimination case and determined that he would be discharged with a general, under honorable conditions discharge.  In a message, dated 10 November 2009, the Deputy Assistant Secretary, Army Review Boards Agency, approved the applicant's elimination case and directed he be given a general discharge.

18.  An OER for the period 1 November 2008 through 30 October 2009 shows the applicant was rendered a 12-month discharge report while assigned as the Battalion Liaison Officer, Headquarters and Headquarters Company,
1st Battalion, 38th Infantry Regiment, 4th Brigade, 2nd Infantry Division, Fort Lewis, WA.  He was rated by the operations officer, a major, and senior rated by the battalion commander, a lieutenant colonel.  The rater's and senior rater's signatures are dated 24 November 2009 and 26 November 2009, respectively.  The block is checked that states "This is a referred report, do you wish to make comments?"  The senior rater comments contain the statement of "Rated officer unable to sign due to leaving the Army."

19.  The applicant's DD Form 214 shows he was discharged on 24 November 2009 with a characterization of service of general under honorable conditions.  He completed 3 years, 3 months, and 1 day of net active service this period.  This form also shows in:

* Item 25 (Separation Authority) the entry Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b
* item 26 (Separation Code) the entry "JNC"
* item 28 (Narrative Reason for Separation) the entry "Unacceptable Conduct"

20.  On 12 September 2011, he appealed to the ADRB for an upgrade of his discharge.  On 29 February 2012, after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly and equitably discharged and denied his request for a discharge upgrade.

21.  The six supporting statements he provided from a former company commander, academic advisor, a professor, and several friends speak highly of his character and conduct.  His former commander expounded on his achievements and outstanding performance of duty while redeployed to Iraq.  His academic advisor stated he was a mature, responsible, and highly motivated person and student.  One author opined that a general discharge was inappropriate for someone who set a positive example to those around him.

22.  The applicant's Army Military Human Resource Record (AMHRR) is void of any evidence to show he voluntarily requested and/or was denied release from active duty (REFRAD) due to hardship.

23.  The applicant's AMHRR is also void of any evidence that indicates his OER for the period of 1 November 2008 through 30 October 2009 was referred to him for acknowledgement and/or comments.

24.  Army Regulation 600-8-24 sets forth the basic authority for the separation of officers.

	a.  Paragraph 1-22a 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 officer's service has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 2-9 states an officer may be REFRAD due to extreme personal or family hardship.  Hardship exists when in circumstances involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship.  The officer must clearly establish that one of the following applies:

* the hardship is permanent and did not exist prior to entry on active duty
* 
if the hardship existed prior to entry on active duty the condition has since intensified and can only be alleviated by separating from active duty
* upon REFRAD the officer will be able to eliminate or materially alleviate the condition

	c.  Paragraph 4-2b states elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interest of national security for:

* Discreditable or intentional failure to meet personal financial obligations
* Mismanagement of personal affairs that are unfavorably affecting an officer's performance of duty
* Mismanagement of personal affairs to the discredit of the Army
* Intentional omission or misstatement of fact in official statement or records for the purpose of misrepresentation

25.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. An SPD code of "JNC" applies to officers who were involuntarily discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2b for unacceptable conduct.

26.  Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, set forth policies and procedures for the Army's Evaluation Reporting System.

	a.  Paragraph 3-34 (Referred reports) states a relief for cause report or any report with negative remarks about the rated officer's Values or Leader Attributes/
Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to Department of the Army.

	b.  Paragraph 3-36 states the referral process ensures the rated Soldier knows that his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired.

	c.  The senior rater will refer, in writing, a copy of the completed report to the rated Soldier for acknowledgement and comment.  This will be done even if the rated Soldier has departed due to permanent change of station, retirement, or 

REFRAD.  A reasonable suspense date will be given for the rated Soldier to complete this action.  If the rated Soldier fails to respond within the suspense period, the senior rater will attach a signed copy of their referral to the original report and indicate either on the original referral or a second attachment that the rated Soldier failed to complete his/her acknowledgement.

	d.  A rated Soldier is responsible for leaving a current forwarding address or email address when they depart a unit.  Mailing a referred OER by certified mail to a Soldier's last disclosed mailing address is sufficient to constitute constructive service of a referred OER.  If an OER sent by certified mail to a Soldier's last known forwarding address is returned indicating that the Soldier may not be reached at that address, the senior rater will attach a signed copy of the referral to the original report and indicate either on the original referral or a second attachment that the rated Soldier failed to complete acknowledgement.

	e.  Paragraph 3-58 states a relief for cause OER is required when an officer is relieved for cause regardless of the rating period involved.  "Relief for Cause" is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.

	f.  If, for whatever reasons, the relief does not occur on the date the officer is removed from duty position responsibilities, the period of time between the removal and the relief will be nonrated time included in the period of the relief report.  The published rating chain at the time of the relief will render the report at the time of the relief; no other report will be due on this officer during this nonrated period.

	g.  Cases where the rated officer has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of potential nonrated time involved.  Every effort will be made to retain the established rating chain, with the officer performing alternate duties under that rating chain, until the investigation is resolved.  If the rated officer is suspended and subsequently relieved, the period between the suspension and the relief is nonrated time.

	h.  Paragraph 4-7 states evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes 

clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	i.  Nonrated time will be subtracted from the period covered on evaluation reports and accounted for with the appropriate nonrated codes.

27.  Army Pamphlet 623-3 (Evaluation Reporting System), Table 2-9, provides the codes and reasons for nonrated periods for OERs.  The table instructs the preparer to use code "Q" for lack of rater qualification.

28.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) states suspension of favorable personnel actions is mandatory when an investigation (formal or informal) is initiated on a Soldier by military or civilian authorities or involuntary separation or discharge.

29.  The same regulation states an officer's promotion is automatically delayed when the officer is under investigation or should be under suspension of favorable personnel actions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel request the applicant's discharge be upgraded to honorable.

	a.  The evidence of record shows the applicant admitted to making a false statement to the S-3 regarding PT.  On 30 September 2008, an Army Regulation 15-6 investigation was conducted in which the IO found that the applicant rendered a false statement to a field grade officer.  The applicant was subsequently removed from his duties as platoon leader.

	b.  On several occasions between 31 March 2009 and 1 May 2009 he was counseled on his substandard performance of duty, failure to report for duty, failure to follow instructions, and failure to keep his chain of command informed.  On 18 August 2009, elimination procedures were initiated for rendering false official statements on two separate occasions, failure to obey a lawful order, failure to repair, and his substandard performance.  On 14 September 2009, the applicant responded to the elimination procedures.

	c.  On 9 November 2009, the Department of the Army Ad Hoc Review Board reviewed his elimination case and determined he would be discharged under honorable conditions.  His elimination was subsequently approved by the Deputy Assistant Secretary, Army Review Boards.

	d.  There is no evidence and the applicant has not provided any to show that he was denied due process.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the elimination process.  The record further shows his discharge accurately reflects his overall record of service.

	e.  Therefore, there is an insufficient evidentiary basis for granting him an honorable discharge.

2.  The applicant and his counsel request his separation authority, separation code, and narrative reason for separation be changed to hardship or Secretarial authority.  

	a.  There is no evidence and he has not provided any to show that he applied for and was denied a hardship discharge.  Therefore, in the absence of documentation to support his claim, the presumption of regularity must be applied.

	b.  By regulation, the SPD code of JNC is the proper code to assign members separated under the provisions of Army Regulation 600-8-24, paragraph 4-2b, by reason of unacceptable conduct.

	c.  Therefore, the narrative reason for separation and the SPD code are correct as constituted.

3.  In regard to the removal or redaction of his OERs for the periods 27 July 2008 through 31 October 2008 and 1 November 2008 through 30 October 2009, the following information is provided.

	a.  OER for the period 27 July 2008 through 31 October 2008:

		(1)  The evidence shows that on 30 September 2008 the applicant was temporarily suspended from his duties as platoon leader pending the results of a 15-6 investigation.  The IO found the applicant made a false statement to a field grade officer and the findings were subsequently approved.  On 14 October 2008, the battalion commander notified the applicant by memorandum of his intent to relieve him for cause.  The applicant was reassigned to the S-1.

		(2)  In accordance with Army Regulation 623-3, if for some reason the relief does not occur on the date the officer is removed from his duty position, the period of time between the removal and the relief will be nonrated time included in the period of the relief report.

		(3)  Based on regulatory guidance, the period between 30 September 2008 through 31 October 2008 (32 days) should be listed as nonrated time.  Therefore, in the interest of equity, it would be appropriate to correct the applicant's OER for this period to show he was rated for 2 months with a nonrated code of "Q."

	b.  OER for the period 1 November 2008 through 30 October 2009:

		(1)  The evidence of record shows that on 13 February 2009 he received an initial counseling from the S-3 who identified himself as the applicant's rater.  He was subsequently counseled by his rater on 31 March 2009, 21 April 2009, and 1 May 2009.  However, the report rendered for this 12-month period identifies someone other than the rater who performed the initial and subsequent counseling statements as the applicant's rater.

		(2)  Further, Part IId of this OER indicates it was a "referred" report.
Item e (Signature of Rated Officer and Date) are blank; however, Part VII (Senior Rater), item c (Comment on Performance/Potential) contains the statement "Rated officer unable to sign due to leaving the Army."

		(3)  In accordance with Army Regulation 623-3, when a report is referred the senior rater will refer, in writing, a copy of the completed report to the rated Soldier for acknowledgement and comment.  This should have been done even if the rated Soldier departed due to REFRAD.

		(4)  The regulation further states if an OER sent by certified mail is returned indicating that the Soldier may not be reached at that address, the senior rater will attached a signed copy of the referral to the original report and indicate either on the original referral or a second attachment that the rated Soldier failed to complete acknowledgement.

		(5)  The fact that there is no documentation contained in the applicant's AMHRR and the OER states the applicant was unavailable for signature, is an indication that the report was never referred to the applicant as required by regulation.  Since the report was not referred to him, he was not afforded the opportunity to respond and therefore denied due process.

		(6)  This fact, coupled with the fact that the rater was not the same person who rendered the initial and performance counseling statements, clearly created an injustice and procedural errors that invalidate this report.

		(7)  Therefore, in the interest of equity, it would be appropriate to remove this report from the applicant's AMHRR.

4.  The applicant and counsel request	                                      2`1	 the applicant be promoted to CPT and his promotion be retroactive to 19 August 2009.  The evidence of record shows at the time his orders were processed on 19 August 2009, he was flagged for non-favorable personnel actions.  As such, he was in a nonpromotable status and not eligible to be promoted to CPT.  Therefore, there is no basis for granting this portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from Part I, item j of his OER for the period 27 July 2008 through 31 October 2008 the current entry and replacing it with the entry "2";

	b.  adding to Part I, item k of his OER for the period 27 July 2008 through
31 October 2008 the entry "Q";

	c.  removing from his AMHRR the OER for the period 1 November 2008 through 30 October 2009.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* upgrading his general discharge to an honorable discharge
* changing the authority for separation, separation code, and narrative reason for separation of his DD Form 214 for the period ending
24 November 2009 to hardship or Secretarial authority
* promoting him to CPT retroactive to 19 August 2009



      ___________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)                                         AR20120013311



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ABCMR Record of Proceedings (cont)                                         AR20120021871



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