IN THE CASE OF:	

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130007917 


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 a change of his reason for discharge and separation code. 

2.  The applicant states, in effect:

	a.  The separation code of "JNC" is wrong because the reason for separation is wrong.

	b.  He was arrested for driving under the influence.  The final charge was reckless driving.  He had to pay a fine and perform community service.  

	c.  He wanted to get away in order to reset his goals and prepare for the issues that were to follow.  He requested leave, which was approved.  After it was approved, the brigade leadership established a new policy which required all traffic violators to attend/teach a class on Saturday.  He was told that if the leave authority approved his request then he was allowed to depart on leave. 

	d.  He planned to visit a friend in Guam and also spend time with his family in South Carolina.  Although he was a captain, he was unaware of the need to include both locations on his leave form; however, he did attend the required briefings for his travel.

	e.  The order that he was said to have disobeyed was an order not to leave Fort Gordon.  However, the order was issued after he had already out-processed and departed on a permanent change of station move.  He had to pay for an airline ticket but he returned as soon as he learned that he should.

	f.  The referred officer evaluation report (OER) does seem to show an abandonment of Army Values, but his performance since then indicates full rehabilitation.

	g.  He contends the purpose of a show cause board is for the individual to provide reasons as to why he or she should be allowed to continue to serve.  He contends that, following the last incident, his record depicts that of an above average military officer with a promising career. 

		(1)  The board members were more concerned about how his career would be able to progress versus considering if he had adequately shown why he should be retained. 

		(2)  His submission to the show cause board listed a lot of the same information included in this document.  The board members did not find any evidence that he disobeyed a direct order.  The board went through extensive measures to determine if he had been granted leave and permission to depart before he was ordered not to depart.  All agreed that he did not violate a direct order, but a reason given for the misconduct separation code states “violation of a direct order.”

	h.  The board of officers did not follow the intent of a show cause board.  They were concerned that he would not be able to progress. This is the reason that he was not allowed to continue service.

	i.  He requests the separation code be adjusted because it is impacting his job opportunities.  He would like to continue to serve in the military in some capacity but the majority of opportunities have been affected by his association with an accusation of misconduct.

3.  The applicant provides copies of his OERs and Bronze Star Medal Certificate. 

CONSIDERATION OF EVIDENCE:

1.  The applicant completed the Reserve Officers’ Training Corps (ROTC) program.  He was appointed a Regular Army second lieutenant in the Military Intelligence branch and entered active duty on 16 June 2004.  He was promoted to first lieutenant on 29 November 2005 and to captain on 1 July 2007.

2.  On 13 March 2008, the applicant was arrested by the Richmond County, Georgia Sheriff's Department for driving 62 miles per hour (MPH) in a 45 MPH zone and driving under the influence (DUI) with a blood alcohol concentration of .08 grams/deciliter.  

3.  The Commander's Inquiry dated 24 April 2008 shows the applicant:

* disobeyed a verbal order to be present at the brigade safety course
* signed out on leave 48 hours earlier than he reported in his own sworn statement
* misled the commander by claiming to be in Honolulu when he was in “Huston,” TX
* disobeyed an order to return immediately
* traveled onward to Honolulu
* disobeyed an order to remain in Honolulu by traveling to Atlanta 

4.  On 7 July 2008, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of violating Article 133 (Conduct Unbecoming an Officer) by failing to notify his command of his leave address on Guam and willful disobedience of Lieutenant Colonel (LTC) S------ D. B------, a superior commissioned officer, to not leave Fort Gordon.  

5.  On 27 June 2008, the applicant and his attorney negotiated a settlement whereby:

* he pled guilty to reckless driving
* he pled no contest to speeding
* the state withdrew prosecution on the DUI
* he received a $1,300 fine and 24 months in confinement
* he was required to serve only 48 hours in confinement and serve
23 months and 28 days on probation

6.  The applicant was awarded the Bronze Star Medal for meritorious service in Iraq between 27 October 2009 and 1 November 2010.

7.  On 29 August 2011, the Richmond Hill, Georgia, Police Department responded to a domestic disturbance complaint at the applicant's residence.  The applicant and a Ms. M------ were arguing.  There was no indication of physical violence and no arrest was made.


8.  On 9 September 2011, the applicant called the Richmond Hill, Georgia, Police Department.  After first denying that he had called, the applicant admitted that he had called because Ms. C------- was disturbing his neighbors by loud accusations that he was being unfaithful.  There was no physical violence involved; however, the Richmond Hills dispatcher determined that there was an outstanding warrant regarding the applicant.  He was, therefore, arrested and transported to the Bryan County Jail.

9.  The Commander, U.S. Army Human Resources Command (HRC) notified the applicant on 12 September 2011 that he was to show cause why he should be retained on active duty.  This action was based on, "A series of substantiated derogatory activity resulting in NJP in July 2008 and a referred OER for the period 26 January 2008 through 25 January 2009. 

10.  In a memorandum dated 26 September 2011 to the Commander, HRC, via his chain of command, the applicant:

   a.  apologized for tarnishing his "previously unblemished reputation and career" to the point that the show cause board was necessary;

	b.  stated he thought his performance since the referred OER demonstrated that he had overcome those deficiencies;

	c.  contended the conversion of the DUI charge to reckless driving came after the OER had been submitted; therefore, it was still on the OER as a DUI;

	d.  he took leave and was on his way to Guam when he learned that he had to return to teach the driver safety course;

	e.  he was scheduled to take the captain's career course.  However, his household goods had been picked up and he was on his way when his officer-in-charge called him to tell him his orders had been cancelled; and

	f.  following the above events, his OERs indicate he is among the best qualified and he has an unlimited future.  While in Iraq he was chosen to command the military intelligence company and he was awarded the Bronze Star Medal.

11.  An email, dated 3 November 2011, from the applicant states he is forwarding documents which show the original DUI was reduced to reckless driving; however, the attached documents do not show the true disposition of that case.



12.  In January 2012, a Board of Inquiry heard his case and:

	a.  heard the applicant report in a unsworn statement that he had never been charged with DUI and that the incident of attending the driver safety course and going on leave and reporting back or not reporting back resulted due to him being told different things by different people;

	b.  found that a preponderance of the evidence showed the applicant had committed reckless driving on 13 March 2008 and been derelict in his duties on 31 March and 5 April 2008 by failing to inform his chain of command of a change in his leave address; and

	c.  heard testimony from the chain of command that the 9 September 2011 arrest related back to the 2008 DUI case and was a mistake because an outstanding warrant had not been cleared from the books;

	d.  recommended the applicant be involuntarily separated from the United States Army, with an honorable characterization of service, due to moral or professional dereliction.

13.  His case was forwarded to the DA Board of Review for Eliminations, which found, on 13 March 2012, that the Government had established by a preponderance of the evidence that the applicant had been driving a vehicle recklessly and was derelict in his duties by failing to inform his chain of command of a change in his leave address.

14.  The Deputy Assistant Secretary of the Army (Review Boards) approved the recommendation and directed that the applicant be separated from the Army with an honorable discharge for acts of misconduct and moral or professional dereliction.  Separation program designator (SPD) "JNC" was to be used. 

15.  He was discharged from the Regular Army on 3 April 2012.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows "Unacceptable Conduct" as the narrative reason for separation.  He was assigned an SPD code of "JNC." 
 
16.  On 13 February 2013, the Army Discharge Review Board considered the case and denied the applicant's request to change the reason for separation.

17.  Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4, provides that:

a. Elimination may or will be initiated in cases involving misconduct, moral or professional dereliction, or in the interests of National Security such as:

* 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 for the purpose of misrepresentation
* acts of personal misconduct (including but not limited to acts committed while drunk or drug intoxicated)
* intentional neglect of or failure to perform duties
* conduct unbecoming an officer

	b.  Some derogatory information requires review of an officer's record with a view toward considering elimination even though any one example by itself would not warrant elimination but might indicate a pattern of behavior that does.  These include:

* punishment under the UCMJ, Article 15.
* a relief for cause OER 
* adverse information filed in the Army Military Human Resource Record (formerly known as the Official Military Personnel File) in accordance with Army Regulation 600–37

	c.  An officer recommended for elimination by a Board of Inquiry will have their case referred to a Board of Review.  The Board of Review is appointed by the Secretary of the Army or his designee and has the same board composition as the Board of Inquiry.  The Board of Review, after thorough review of the records of the case, will make recommendations to the Secretary of the Army or his designee as to whether the officer should be retained in the Army.  Appearance by the respondent (or the counsel) is not authorized.

18.  Army Regulation 635-5-1 (SPD Codes) provides 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.  It identifies SPD code "JNC" as the appropriate code to assign to officers who are involuntarily discharged due to "unacceptable conduct."

19.  The Table of Maximum Punishments in the Manual for Courts-Martial shows the authorized punishment for conviction by a general court-martial for any incidence of conduct unbecoming an officer includes dismissal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the separation code, "JNC," is wrong because the reason for separation is wrong.

2.  The applicant did not specify what reason for separation or SPD code he thought was appropriate.

3.  The applicant was eliminated for conduct unbecoming an officer.  The discharge proceedings were conducted in accordance with applicable law and regulations.  The character of service and reason for discharge are commensurate with the applicant's overall record of military service.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

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)                                         AR20130007917



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007917



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1