IN THE CASE OF:	  

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130009998 


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 his records as follows: 

* change the characterization of his service from under other than honorable conditions to general, honorable, or medical
* change his line of duty determination to "In Line of Duty (ILOD)"
* adjustment of his benefits

2.  The applicant states:

* the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) was unjust and impractical; the regulation was not adhered to; there was a lack of evidence in the AR 15-6 findings
* the findings by the separation board were inconsistent with the evidence
* he had prior service and he adhered to the Army values of duty, loyalty, honor, and ethical behavior during his job performance
* there is an actual record reflecting his complete election of rights regarding consideration of his case by an administrative separation board

3.  The applicant provides:

* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* Self-authored memorandum in support of the discharge upgrade
* Army Discharge Review Board (ADRB) Case Report and Directive
* Separation packet
* Multiple DA Forms 4856 (Developmental Counseling Form)
* Extract of AR 635-200 (Active Duty Enlisted Administrative Separations)
* AR 15-6 Investigation Guide for Informal Investigations
* Legal review of administrative separation board
* Multiple affidavits by recruits
* DA Form 31 (Request and Authority for Leave)
* Army National Guard (ARNG) Federal Tuition Assistance Program Application Information
* Direct Deposit Sign-up Form
* Waiver of Rights Under Article 5, Mississippi (MS) Code of Military Justice
* AGO Form 202 (Notification of Intent to Impose Nonjudicial Punishment)
* AGO Form 202A (Imposition of Nonjudicial Punishment)
* Notification of Intent to Involuntarily Separate/Terminate from the Active Guard Reserve (AGR) Program
* Standard Form 52 (Request for Personnel Action)
* Multiple DA Forms 2823 (Sworn Statements) 
* Arithmetic Reasoning, Paragraph Comprehension, and Math Knowledge portions of the Armed Services Vocational Aptitude Battery (ASVAB) test
* Power-Point Slides titled "ASVAB Compromise - Detection of "Study Guide" Use”
* Multiple DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the MSARNG on 13 May 1986 and he initially held military occupational specialty 73D (Accounting Specialist).  He served through multiple extensions in a variety of assignments, including Germany and Bosnia.

2.  On 1 June 2006, the MSARNG issued the applicant a 20-year letter. 

3.  He entered active duty in an AGR status on 1 September 2006.  He held the rank/grade of sergeant first class (SFC)/E-7 and he was assigned as a Recruiting and Retention NCO to the MSARNG Recruiting and Retention Battalion, Jackson, MS. 

4.  His records do not contain an AR 15-6 and he did not provide a copy of such investigation.  

5.  On 22 May 2009, the applicant's commander notified him of his intent to initiate administrative action to separate him from the MSARNG under the provisions of paragraph 12-1c (commission of a serious offense) of AR 135-178 (ARNG and Army Reserve Enlisted Administrative Separations) by reason of misconduct with an under other than honorable conditions discharge.  The specific reasons are cited as follows: 

	a.  based on crime lab evidence, the applicant arranged the use of participants (ringers) to habitually take the ASVAB test for potential or unqualified applicants into the MSARNG, thereby defrauding the Government of hundreds of thousands of dollars;

	b.  he fraudulently enlisted numerous applicants into the MSARNG that under fair and lawful practices would not have been qualified to join;

	c.  he gained financially through the misuse of Federal funds conspiring with said ringers to profit deceitfully through the use of Guard Recruiting Assistance Program (GRAP) funding; 

	d.  he violated basic conduct of military professionalism and ethical conduct, setting an example as an NCO to the numerous recruits and potential recruits that he came into contact with that the MSARNG is a corrupt organization, the rules are not to be followed, and turning service to country into a primarily money-making affair for the individuals he involved in this scheme; 

	e.  through these illegal practices, he undermined the authority, credibility, and honor of his leadership; through these actions, unqualified individuals are likely to be given tremendous responsibilities for which they were not prepared; the consequences are potentially devastating to the lives of others and the lives of the Soldier; and

	f.  the above misconduct is in violation of the Mississippi Code of Military Justice, the U.S. Code, and applicable Army regulations.  

6.  The applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by an administrative separation board and personal appearance before an administrative separation board.  He further indicated:

* he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him
* he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge

7.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander recommended separation action against him in accordance with chapter 12 of AR 135-178, for misconduct.

8.  There is no record of the applicant being notified to appear before an administrative separation board; however, the administrative separation board proceedings reflect that he was notified on 14 July 2009.  

9.  On 2 August 2009, an administrative separation board convened at The Adjutant General's Office, MSARNG, Jackson, MS, with the applicant and his private attorney present. 

	a.  The administrative separation board found sufficient evidence to support a finding that the applicant committed the misconduct as alleged.  There was sufficient credible evidence on all 6 of the charges that were brought before the administrative separation board.

	b.  The administrative separation board recommended the applicant be discharged from the service with an under other than honorable conditions discharge. 

10.  On 14 August 2009, a Joint Staff Judge Advocate of the MSARNG reviewed the record of the administrative separation board and found it legally sufficient. 

11.  The Adjutant General of Mississippi approved the findings and recommendations of the administrative separation board and ordered the applicant discharged.

12.  The applicant was discharged from active duty on 19 August 2009 under the provisions of chapter 6 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), and AR 635-200 with a character of service of under other than honorable conditions by reason of misconduct.  He completed 2 years, 11 months, and 19 days of active service during this period.  His DD Form 214 also shows in

* Item 24 (Character of Service), his service was characterized as "Under Other Than Honorable Conditions" 
* Item 26 (Separation Code) and Item 27 (Reentry Code), JKK and RE-4 
* Item 28 (Narrative Reason for Separation), Misconduct 
13.  Also on 19 August 2009, two sets of orders were issued by the MSARNG:

	a.  Orders 23-827 ordered his reduction to the lowest enlisted grade effective 19 August 2009; and

	b.  Orders 231-840 ordered his discharge from the ARNG effective 19 August 2009, in accordance with NGR 600-200, paragraph 6-35i(1) with an under other than honorable conditions discharge. 

14.  The applicant's records do not contain a Line of Duty determination or his service medical records.  

15.  On 22 April 2013, he appeared before the Army Discharge Review Board (ADRB) for a review of his discharge.  The ADRB considered his testimony as well as the evidence of record and determined he was properly and equitably discharged.  The ADRB unanimously denied his petition for an upgrade of his discharge. 

16.  The applicant provides: 

	a.  NCOERs for the rating periods 1 September 2007 through 31 August 2008 and 1 September 2008 through 30 June 2009.  Both NCOERs reflect ratings of "Success" or "Excellence" and "Among the Best" by his raters and "Successful" and "Superior" by his senior raters. 

	b.  Multiple affidavits and/or sworn statements from various individuals commenting on his solid performance and honesty. 

	c.  Multiple counseling forms. 

17.  NGR 600-200 governs procedures for the administrative separation of enlisted personnel of the ARNG.  Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard.  Paragraph 6-35i(1) states specific categories of misconduct include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave

18.  AR 135-178 sets policies, standards, and procedures for administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons.  Chapter 12 covers separation by reason of misconduct.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.  Paragraph 2-9 of AR 135-178 states:

	a.  An honorable characterization is appropriate when the quality of the Soldier'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. 

	b.  If a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record.

	c.  Service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons, and under several other circumstances.

	d.  No Soldier will be discharged in accordance with this regulation, with service characterized as under other than honorable conditions, unless he or she is afforded the right to present his or her case before an administrative separation board.  The Soldier will be afforded the advice and assistance of counsel.  Such discharge must be supported by approved board findings, and an approved board recommendation for discharge under other than honorable conditions

DISCUSSION AND CONCLUSIONS:

1.  Although an AR 15-6 is neither available nor provided by the applicant, the applicant's record shows he committed various acts of misconduct while performing his duties as a Recruiting and Retention NCO.  Accordingly, his chain of command initiated separation action against him.  He exercised his rights and elected an administrative separation board.  

2.  The fact that his record does not contain a memorandum informing him of the administrative separation board is irrelevant since he ultimately appeared before the administrative separation board, with his counsel, and he was given the opportunity to present his case. 

3.  The administrative separation board found sufficient evidence to support a finding that the applicant committed the misconduct as alleged.  There was sufficient credible evidence on all 6 of the charges that were brought before the board.  The administrative separation board recommended the applicant be discharged from the service with an under other than honorable conditions discharge.  The Adjutant General approved the findings and recommendations and ordered him discharged. 

4.  The available record confirms this discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to neither a general nor an honorable discharge.

6.  He contends he should receive a medical discharge.  He confuses the characterization of service with the narrative reason for separation.  The characterization or description of service is determined by directives authorizing separation.  It can be honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, or uncharacterized.  The narrative reason for separation is based on the regulatory or statutory authority.  Examples of narrative reasons for separation include hardship, pregnancy, in lieu of court-martial, misconduct, and disability (i.e., medical).

7.  There is no evidence in his records and he provides none to show he suffered from a disabling condition or injury that was diagnosed by a competent medical authority to have affected his ability to perform the duties required of his rank or military specialty or was unfitting.  There is insufficient evidence to support a medical reason for separation.

8.  He contends his LOD should be changed to ILOD and his benefits be adjusted to reflect the change.  There is no evidence in his records and he provides no evidence of a line of duty determination.  The Board cannot consider something that it does not have.  

9.  He contends his benefits should be restored.  Although he did not specifically state what benefits, the applicant is advised that the Board corrects records; it does not determine entitlements to benefits.  Furthermore, some benefits are not within the purview of this Board.  For example, if he is referring to service-connected disability benefits, such benefits should be addressed to the Department of Veterans Affairs. 
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)                                         AR20130009998





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ABCMR Record of Proceedings (cont)                                         AR20130009998



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