BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130007608 


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 correction of the narrative reason for separation and associated codes shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from "Unacceptable Conduct" to something more favorable. 

2.  The applicant states the conditions under which he signed [his resignation] were fraudulent and manipulative.  His statement to his Member of Congress details the full treatment and forced resignation from the Army.  No young second lieutenant (2LT) should ever be subjected to the abuse, fraud, manipulation, personal character and professional destruction, security clearance revocation, and forced separation employing subterfuge in legal representation and altering an innocent adverse experience to appear as intended criminality.  The narrative reason for separation and associated codes falsely prevent him from further service to his country. 

3.  The applicant does not provide any evidence. 

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.  The applicant's records show he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 25 August 1978.  He entered active duty on 15 January 1979 and he completed the Air Defense Artillery Officer Basic Course.  

3.  He served in Germany with the 2nd Battalion, 6th Field Artillery, from 21 June 1979 to on or about 23 December 1980.  

4.  On 20 December 1979, he was reprimanded by his immediate commander for his continued tardiness to work and his increasing indebtedness.  The immediate commander stated that:

	a.  Despite numerous counseling, the applicant failed to exhibit a proper degree of concern regarding the timeliness to arrive at work on time and he failed to notify the unit on every occasion that he would be late.  His most recent violation resulted in missing a readiness alert for the second month in a row.  Additionally, he had been late to work at least one day each week since November.  On one occasion, his tardiness resulted in missing sector reconnaissance.

	b.  As for his indebtedness, he had received several Notifications of Dishonored Checks from various facilities.  Despite a discussion to bring his Leave and Earnings Statements with any outstanding loans to examine the situation, he (the applicant) had failed to come forth with the information or seek financial counseling as suggested by his commander. 

	c.  He had failed to conduct himself in a manner expected of a commissioned officer and had disregarded any attempts to assist him.

5.  On 7 August 1980, the applicant's battalion commander initiated a recommendation for the applicant's elimination from the service in accordance with chapter 5 of Army Regulation 635-100 (Personnel Separations - Officer Personnel) by reason of professional dereliction.  The commander cited the applicant's past dereliction of duty, mismanagement of his personal affairs to the discredit of himself and the service, and his acts of misconduct.  

6.  Also on 7 August 1980, the applicant's battalion executive officer rendered a sworn statement detailing the applicant's lack of interest and aggressiveness in learning his duties, missing work, money problems, being absent from his appointed place of duty/training, missing movement, appearance and bearing, and other professional issues. 

7.  On 25 August 1980, the applicant's senior commander notified him of the intent to eliminate him from the service under the provisions of paragraph 5-14 of Army Regulation 635-100 for the following reasons:

* Multiple failures to be at his appointed place of duty
* Absence from at least two alerts
* Continued failure to be at his appointed place of duty
* Repeated failure to obey orders (not returning loaned items)
* Intentional failure to meet financial obligations
* Gross mismanagement in personal financial affairs
* Involvement with a married woman which allegedly led to her becoming pregnant

8.  On 9 September 1980, the applicant's senior commander examined the elimination packet with supporting documents and recommended approval of the applicant's elimination by reason of professional dereliction. 

9.  On 24 September 1980, the Commanding General (CG), 3rd Armored Division, reviewed the recommendation for elimination action for professional dereliction and advised the applicant that he intends to recommend approval.  He further advised the applicant that he had the right to submit a resignation or apply for retirement, if otherwise eligible.  

10.  On 7 October 1980, the applicant consulted with legal counsel and he was advised of the basis for the contemplated elimination action, the possible effects of a discharge action, under other than honorable conditions if his resignation in lieu of elimination were approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he tendered his resignation from the Army in lieu of elimination under the provisions of Army Regulation 635-120 (Officer Transfers and Discharges), chapter 4.  He further waived his right to appear before a board of officers or to submit matters in explanation, rebuttal, or defense of the allegations in his case.  He acknowledged he understood:

* if his resignation were accepted under other than honorable conditions, he would not be entitled to compensation for unused leave
* he would be barred from all rights under any laws administered by the Veterans Administration (VA) based on the period of service from which he would be separated
* if his discharge request were approved, he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA

11.  On 31 October 1980, the applicant's immediate and intermediate commanders recommended approval of the resignation request with the issuance of a General Discharge Certificate.  His senior commander and the CG, 3rd Armored Division; however, recommended an Honorable Discharge Certificate.

12.  On 1 December 1980, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command) approved the applicant's resignation in lieu of elimination for misconduct, moral or professional dereliction, under the provisions of paragraph 5-19b(1) of Army Regulation 635-100 and chapter 4 of Army Regulation 625-120, and directed the issuance of orders effecting his honorable discharge by order of the Secretary of the Army.  The decision was announced in Department of the Army (DA) Message 091330Z December 1980.

13.  He was honorably discharged on 29 December 1980.  His DD Form 214 shows he was discharged in accordance with chapter 4 of Army Regulation    635-120 and DA Message 091330Z December 1980.  He completed 1 year, 11 months, and 15 days of active service.  His DD Form 214 also shows in:

* Item 26 (Separation Code) - "BNC"
* Item 28 (Narrative Reason for Separation) - "Unacceptable Conduct - Other Than Listed)

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

15.  At the time Army Regulation 635-120 implemented the statutory provisions of Title 10, U.S. Code, governing officer separations and provided policies and procedures for separating officers from active duty.  Chapter 4 prescribed procedures to eliminate officers from the Army for substandard performance of duty.  It stated that officers whose performance of duty which had fallen below standards prescribed by the Secretary of the Army could be separated.  The existence of apathy, defective attitudes, or other character disorders, to include inability or unwillingness to expend effort, unless successfully rebutted, authorized elimination of an officer due to substandard performance of duty.  Commanders would ensure that there was no element of coercion in connection with a resignation in lieu of elimination.  An officer could tender a resignation because of reasons outlined in Army Regulation 635-100 such as professional dereliction prior to being recommended for elimination under the provisions of Army Regulation 635-100. 

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code "BNC" was the correct code for commissioned officers separating under the provisions of chapter 4 of Army Regulation 635-120 by reason of unacceptable conduct. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a level of unacceptable conduct as evidenced by his multiple failures to be at his appointed place of duty, absence from at least two alerts, continued failure to be at his appointed place of duty, repeated failure to obey orders, intentional failure to meet financial obligations, gross mismanagement in personal financial affairs, and involvement with a married woman which allegedly led to her becoming pregnant.  As such, his chain of command recommended him for elimination from the service.  

2.  Contrary to his contention that he was coerced into resigning, the evidence of record shows he voluntarily, willingly, and in writing, requested resignation from the Army instead of the elimination action which could have resulted in an under other than honorable conditions discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  His separation code and narrative reason for separation were assigned based on his discharge under the provisions of chapter 4 of Army Regulation 635-100 due to his unacceptable conduct.  Absent the unacceptable conduct, there was no fundamental reason to process him for elimination from the service.  The underlying reason for his discharge was his unacceptable conduct.  He provides no evidence to support any of his contentions.  The only valid narrative reason for separation permitted under chapter 4 is "unacceptable conduct" and the appropriate separation code associated with this type of discharge are "BNC" which is correctly shown on his DD Form 214.  Therefore, he is not entitled to the 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)                                         AR20130007608





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ABCMR Record of Proceedings (cont)                                         AR20130007608



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