IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130008502 


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 reconsideration of his previous request for reversal of the Army Grade Determination Review Board (AGDRB) decision to place him on the Retired List in the rank/grade of first lieutenant (1LT)/0-2.

2.  The applicant states:

   a.  He retired after 27 years of Active and Reserve service in March 2007.  He served 11 years on active duty worldwide as a commissioned officer in the rank of captain (CPT).  He was honorably discharged from active duty as a CPT in April 1987.  He resigned after being passed over for promotion.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) characterized his service in the rank of CPT as honorable.  He subsequently joined the U.S. Army Reserve (USAR) in 1991, held a secret clearance, and served an additional 16 years before retiring.  He seeks consideration of his many years of service and sacrifice.

   b.  Army Regulation 135-175 (Army National Guard and Army Reserve - Separation of Officers), paragraph 1-5b(1), states the DD Form 256A (Honorable Discharge Certificate) is a separation from the U.S. Army with Honor. The issuance 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.  By this definition, it is evident that competent military authority in 1987 deemed his service grade worthy of this standard of honor and yet was overruled 25 years later by a non-investigative agency.
   c.  The regulation further states, "Each officer discharged honorably will be furnished a discharge certificate prepared as prescribed in Army            Regulation 635-5 (Separation Documents).  Maximum consideration of all events and circumstances leading to the discharge is essential in determining the type of discharge to be furnished.  The type of discharge certificate will be based solely on the officer's behavior and performance of duty during the current period of service when actually performing active duty.  He was given maximum consideration in 1987, but not in 2012.

   d.  His file contains no criminal conviction, Article 15, court-martial, dismissal, or involuntary separation, yet he was administratively reduced in rank, without due process of law or legal representation.  The Army Review Boards Agency has rendered his honorable discharge and DD Form 214 as essentially meaningless documents.  He seeks to restore his honor and reputation, including other Soldiers similarly mistreated by the Army they so faithfully served.  

3.  The applicant provides copies of his DD Form 214 and Honorable Discharge Certificate.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011941, on 21 February 2013.

2.  The applicant submitted copies of his DD Form 214, Honorable Discharge Certificate, and a new argument.  These are considered new evidence and will be considered by the Board.

3.  The applicant was born on 2 May 1952.  He was appointed in the USAR, as a second lieutenant, on 16 May 1975.  He was ordered to active duty and entered active duty on 7 January 1976.  He was promoted to CPT on 29 April 1980.

4.  He received a "Relief for Cause" OER for the period 16 March through 31 October 1986.  He was relieved of his duties as an executive officer based on his misconduct and professional dereliction by failing to secure his privately-owned hand gun and leaving it unattended in his office desk.  He also failed to properly register one of his privately-owned vehicles purchased 6 months earlier. Both of the incidents were recently-repeated incidents for which he was previously administered an official letter of reprimand by the battalion commander in July 1986.

5.  In this OER, the senior rater (SR) rendered the following comments:

[Applicant's] misconduct, professional dereliction of duties, and direct disobedience of his written order cannot be tolerated within the Officer Corps.  By his discreditable conduct and failure to uphold his officer's oath, he had proven he was unworthy for continued service in any capacity.

6.  On 20 January 1987, he received a General Officer Memorandum of Reprimand (GOMOR) for having a blood alcohol level exceeding .05 percent while on duty and having the smell of alcohol on his breath during a scheduled officers' professional development class on 11 December 1986.  He acknowledged the GOMOR and indicated he was submitting statements in his behalf.  These statements are not available.

7.  In December 1986, he tendered his unqualified resignation from the U.S. Army with an effective date of 1 April 1987.  His resignation was approved on 12 January 1987.

8.  He received a "Referred OER" for the period 1 November 1986 through 29 March 1987 wherein the rater stated:

Although acceptance of pending separation had improved [sic] in the past 6 weeks, his initial verbalized negative attitude toward military authority and structure was a disruptive influence to cohesive functioning of the   S-3 Section.  The applicant displayed difficulty in dealing with this change in his career status by not exercising good judgment and lowering his personal standard of self-discipline by not controlling negative verbal comments. 

9.  The SR stated that it was unfortunate the applicant's performance was degraded by alcohol abuse.  He was not a rehabilitative success; therefore, he had no future potential as either an Active or Reserve officer.

10.  He was honorably discharged in the rank of CPT on 1 April 1987, by reason of unqualified resignation.  He was credited with completion of 11 years, 2 months, and 25 days of net active service.

11.  He enlisted in the USAR, in pay grade E-5, on 23 October 1991.  He served continuously through several reenlistments and various assignments.  Orders dated 8 September 2011 show he was placed on the retired list in the rank/grade of sergeant first class/E-7 effective 2 May 2012.  

12.  Orders dated 21 September 2011 show he was advanced on the Retired List to the rank of CPT.

13.  On 17 April 2012, the AGDRB determined the highest rank/grade in which he served satisfactorily for the purpose of computation of retired pay was 
1LT/O2.

14.  Orders dated 9 May 2012 amended his rank/grade on the Retired List to read 1LT/O2.

15.  Title 10, U.S. Code, section 1370, states in order to be credited with satisfactory service in an officer rank/grade below the rank/grade of lieutenant colonel a person must have served satisfactorily in that rank/grade as a Reserve commissioned officer in an active status, or in a retired status on active duty, for not less than 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows while serving on active duty in the rank of CPT he received a referred OER for the period 16 March through 31 October 1986 relieving him of his duties as an executive officer for misconduct and professional dereliction.  He was also issued a GOMOR for having a blood alcohol level of .05 percent and having the smell of alcohol on his breath during a scheduled development class.  

2.  He received a second referred OER for the period 1 November 1986 through 29 March 1987 which noted he was not a rehabilitative success; therefore, he had no future potential as either an Active or a Reserve officer.  On 1 April 1987, he was honorably discharged from active duty in the rank of CPT by reason of unqualified resignation.  He enlisted in the USAR on 23 October 1991 and served continuously until he was honorably retired in pay grade E-7 on 2 May 2012.

3.  On 9 May 2012, his rank/grade on the Retired List was changed from CPT/O3 to 1LT/O2 as determined by the AGDRB.

4.  By law, in order to be credited with satisfactory service an officer must have served a minimum of 6 months in an active status.  While he served over the minimum amount of time, his acts of misconduct in the rank of CPT between March and December 1986 demonstrated his unsatisfactory service during this period.

5.  His contentions have been noted and found not to have merit.  As a commissioned officer and a Soldier, the applicant was required to set high personal and professional standards of conduct.  His conduct which resulted in his relief for cause and the issuance of a GOMOR raised serious questions about his judgment, self-discipline, and integrity.  With the support of his command, it appears he was allowed to resign his commission.  Based on the seriousness of his misconduct, he failed to serve satisfactorily in the grade of CPT for retirement purposes.

6.  He did not provide sufficient evidence or a convincing argument to support his request.  There is insufficient evidence to show his placement on the retired list in the grade of 1LT was inaccurate, unjust, flawed, or improper.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120011941, dated 21 February 2013.

	


      _______ _  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)                                         AR20130008502





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008502



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1