IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130021935 


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 voidance of his approved administrative separation board (ASB) proceedings, transfer to a different command, and retention on active duty or, in the alternative, retirement with 15 years of active service under the provisions of the Temporary Early Retirement Authority (TERA).

2.  The applicant states his ASB that was based on an incident involving driving under the influence (DUI) of alcohol that occurred on 14 April 2013 was unfair and unjust.

	a.  He states he was reassigned to the Battalion S-3 after the DUI incident where Master Sergeant (MSG) M____ was his supervisor.  He also served as a member of his ASB.  In addition, no one from his chain of command spoke on his behalf at the ASB and his company commander appeared as a witness for the government.

	b.  He completed the Army Substance Abuse Program (ASAP) and Army Regulation 600-85 (The Army Substance Abuse Program) states that Soldiers who complete the program with a positive, productive, and healthy lifestyle are to be returned to full duty status.

	c.  He received a general officer memorandum of reprimand (GOMOR) from Brigadier General (BG) C____ A. F____, Deputy Commanding General (DCG) for Operations, 82d Airborne Division, and a relief-for-cause noncommissioned officer evaluation report (NCOER) relieving him from his duties as platoon sergeant.  He notes that these two documents are filed in his permanent record and were sufficient punishment for the DUI incident.

	d.  During the ASB proceedings, 10 individuals spoke or wrote character reference letters on his behalf and recommended his retention in the Army.  They provided testimony that his service to his country should not be terminated.  In addition, two of the individuals indicated they were willing to accept him into their command and all of them indicated they would be willing to go into combat with him anytime and anywhere.  Despite this testimony, the board recommended his separation from the Army.

	e.  He concludes that the ASB did not examine his character references or his meritorious service over the past 15 years, which included three combat tours to Iraq.  The board based its decision on only one adverse incident over the course of his 15 years of service.  He concludes that the ASB process was unjust and he requests this Board retain him on active duty and transfer him to a different command or authorize a temporary early retirement.

3.  The applicant provides a copy of the ASB proceedings, five letters, and numerous documents from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 October 1998 for a period of 3 years.  He was awarded military occupational specialty 92F (Petroleum Supply Specialist).  He has remained on active duty through a series of reenlistments and he is currently serving in the rank of sergeant first class (SFC)/pay 
grade E-7.

2.  A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System revealed the following two documents are filed in the performance folder of his AMHRR:

	a.  A GOMOR and allied documents issued to the applicant by BG F____, DCG for Operations, 82d Airborne Division, Fort Bragg, NC, for DUI of alcohol on 14 April 2013 shows the reason for the GOMOR was because the applicant was stopped by a Military Police officer for failing to maintain his lane.  Two separate breathalyzer tests determined a blood alcohol content of .21 percent and .19 percent.

	b.  A DA Form 2166-8 (NCOER) covering the period 13 July 2012 through 31 May 2013 documents the applicant's performance while assigned as Platoon Sergeant, Company A, 407th Brigade Support Battalion, 82d Airborne Division, Fort Bragg, NC.  The relief-for-cause NCOER states the applicant exercised poor judgment as an NCO by operating a motor vehicle while under the influence of alcohol that resulted in a DUI offense, he set a bad example to his paratroopers, and he failed to understand the impact of his behavior on the unit and mission.

3.  A copy of the applicant's administrative separation packet is not yet filed in his AMHRR.

4.  In support of his application the applicant provided, in part, the following documents:

	a.  His administrative separation packet shows the applicant's company commander notified him on 8 May 2013 that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c, based on commission of a serious offense.  The commander's reason for the proposed action was that the applicant was arrested on 14 April 2013 for DUI of alcohol.

		(1)  The applicant was advised of his rights and the separation procedures involved.

		(2)  On 9 May 2013, the applicant consulted with legal counsel and he was advised of the rights available to him.  He requested a personal appearance before an ASB, appointment of military counsel for representation, and copies of the documents that would be sent to the separation authority supporting the proposed separation.  He also indicated he would submit statements on his own behalf to the ASB.

	b.  On 13 May 2013, the immediate and intermediate commanders recommended approval of the applicant's separation for misconduct based on the commission of a serious offense with issuance of an honorable discharge.

	c.  Headquarters, 2d Brigade Combat Team (BCT), 82d Airborne Division, Fort Bragg, NC, memorandum, dated 20 March 2013, subject:  Appointment of Board Members for ASB for Enlisted Personnel Assigned or Attached to the 2d BCT, 82d Airborne Division, Fort Bragg, NC, lists the members appointed to the ASB and shows MSG M____ V. M____ is listed as an alternate board member.

	d.  On 14 May 2013, the Commander, 2d BCT, directed the previously-appointed board members to convene to determine whether the applicant should be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c.

	e.  On 15 May 2013, the President of the ASB notified the applicant the administrative separation hearing would be conducted on 30 May 2013.  He also advised him of his rights, the names of witnesses known to him that would be asked to testify, and the evidence to be considered.  He also advised him that the hearing would proceed in his absence and that his counsel would represent him.  The applicant acknowledged receipt of the notification on 15 May 2013.

	f.  On 21 May 2013, the President of the ASB again notified the applicant of the conduct of the administrative separation hearing and that it was rescheduled for 6 June 2013.  The applicant acknowledged receipt of the notification on 21 May 2013.

	g.  Five character reference letters show the individuals favorably attest to the applicant's personal and professional characteristics, his faithful service, and also recommend his retention in the Army.  The letters are from the following individuals:

* SFC M____ A. J____, NCO in Charge, Air Defense, 5th Battlefield Coordination Detachment, dated 29 May 2013, who served with the applicant when they were recruiters (from 2009 to 2012)
* Sergeant K____ N. A____, Recruiter, Florence Army Recruiting Station, dated 30 May 2013, who has known the applicant for the past 8 years and served with him in combat on two occasions
* Command Sergeant Major (CSM) K____ L. W____, CSM, 210th Brigade Support Battalion, 2d BCT, dated 30 May 2013, who states he served with the applicant for 5 years (from 2005 to 2009)
* Chief Warrant Officer Two M____ D____, Brigade Movement Officer in Charge, 172d Infantry Brigade, dated 5 June 2013, who met the applicant in 2000 and shared living quarters with him until 2003
* Officer D____ A____, Fort Worth Police Department, undated, who met the applicant in 2002 and was invited by the applicant to move in with him after learning of the difficult times the officer was experiencing

	h.  On 5 June 2013, the applicant submitted a letter of apology to the ASB.

	i.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows the ASB convened at 0900 hours, 6 June 2013.  It shows the applicant and his counsel were present and MSG M____ is listed as a voting board member.

		(1)  The ASB Summarized Transcript shows there was no challenge by the defense to the voting board members, but the applicant's counsel did ask the board members questions to determine neutrality of the board.

		(2)  The government called one witness (i.e., the applicant's company commander), the defense called five witnesses, the applicant made a sworn statement, and both sides presented closing arguments.

		(3)  The board recommended the applicant's separation from military service with an honorable discharge.

	j.  In a memorandum to the separation authority, dated 5 June 2013, Captain W____ M. G____, the applicant's defense counsel, outlined substantive and procedural errors in the ASB and requested appropriate relief (i.e., that the separation action be set aside and/or the applicant be retained on active duty).  He cited the following reasons:

* consideration of the applicant's 15 years of exemplary service, including three combat deployments, versus his one serious mistake
* previous sufficient punishment for the misconduct in the form of a permanently-filed GOMOR and relief-for-cause NCOER
* failure to be properly (timely) notified of additional documentation submitted in support of his separation
* separating the applicant violates Army Regulation 600-85 because he is entitled to education, counseling, rehabilitation, and an opportunity to return to full duty status following his successful completion of ASAP

	k.  On 22 July 2013, the Administrative Law Attorney, 82d Airborne Division, conducted a legal review of the applicant's separation proceedings and found there was no legal objection to the findings and recommendations of the ASB.

		(1)  She determined the board procedures complied with the governing Army regulations, a preponderance of the evidence supports the board's findings, the recommendation to separate the applicant with an honorable characterization of service is consistent and within the board's authority, and the separation documents are complete and free of material errors.

		(2)  She also commented on applicant's counsel's claim that separation of the applicant violates Army Regulation 600-85 on the grounds that the regulation grants Soldiers diagnosed with alcohol abuse a right to rehabilitation.  She noted the portion of the regulation that permits one period of rehabilitation per career discusses separation for failure of alcohol abuse programs, not misconduct.  It does not prohibit commanders from initiating separation based on criminal activity stemming from alcohol use.

	l.  On 26 July 2013, the separation authority approved the findings and recommendations of the ASB and directed the applicant's discharge with a characterization of service as honorable.

	m.  The DD Form 214 (Certificate of Discharge or Release from Active Duty) the applicant provided shows he entered active duty on 26 October 1998 and was honorably discharged on 23 February 2014 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense).

		(1)  He completed 15 years, 3 months, and 28 days of net active service during this period.

		(2)  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized the:

* Iraq Campaign Medal with five bronze service stars
* Bronze Star Medal
* Army Commendation Medal (7th Award)
* Army Achievement Medal (2nd Award)
* Meritorious Unit Commendation (3rd Award)
* Army Good Conduct Medal (4th Award)
* National Defense Service Medal
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* NCO Professional Development Ribbon with Numeral 3
* Army Service Ribbon
* Overseas Service Ribbon (4th Award)
* Multinational Force and Observers Medal (2nd Award)
* Silver Basic Recruiter Badge with two gold achievement stars
* Combat Action Badge
* Parachutist Badge
* Air Assault Badge
* Driver and Mechanic Badge with Driver-W and Mechanic Clasps
* Uruguayan Parachutist Badge

		(3)  Item 14 (Military Education) shows he completed the:

* Advanced Petroleum and Water Logistics Course
* Advanced Leaders Course
* Air Assault
* Air Load Planners
* Area Nuclear, Biological, and Chemical Officer Defense Course
* Army Recruiter
* Battle Staff
* Business Orientation Course
* Combat Lifesaver Course
* Combatives Level 1
* Demonstrated Senior Logistics
* Equal Opportunity Leaders
* Hygiene Sanitation
* Petroleum Supply Specialist
* Senior Leaders Course
* Transport/Storage of Hazardous Materials
* Unit Prevention Leader Course
* Warrior Leader Course

	n.  He also provided numerous records from his AMHRR documenting his military service that include his NCOER's, awards, certificates, and badges; military training and education; civilian education; and letters, certificates, and citations of completion and participation.

5.  In the processing of this case, an advisory opinion was obtained from the Deputy, Operations Management Division, U.S. Army Human Resources Command (HRC).

	a.  The advisory official recommends the applicant's records remain unaltered.

	b.  He stated that a review of the applicant's ASB proceedings did not reveal a regulatory reason to overturn the board's recommendation or the separation authority's decision to involuntarily separate the applicant.  In addition, there are no provisions that require a rehabilitative transfer of the applicant to a different command.

	c.  He also stated that a review of the board proceedings confirmed that MSG M____ was listed as a board member on both the notification memorandum and the appointment memorandum.  However, the ASB members were questioned to determine their neutrality and there was no objection/
challenge by applicant's counsel.  There was also no evidence that MSG M____ was the applicant's supervisor at the time the ASB convened.

	d.  He added there are no provisions that require members of the chain of command to speak in support of a Soldier appearing before an ASB.  Nonetheless, the applicant's platoon leader did appear before the board as a witness for the applicant.

	e.  The applicant successfully completed ASAP and the governing Army regulation states that all Soldiers who complete the ASAP rehabilitation program with a positive, productive, and healthy lifestyle are to be returned to full duty status.  However, the applicant is not being separated under the provisions of Army Regulation 635-200, chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure), which provides that offenses involving alcohol or drugs may properly be the basis for discharge proceedings under the provisions of Army Regulation 
635-200, chapter 14 when not precluded by the limited use policy.

	f.  Regarding the GOMOR and relief-for-cause NCOER the applicant received as a result of his DUI, the advisory official states that it is the separation authority's responsibility to determine what measures should be taken regarding the Soldier's actions.  The Mandatory Initiation of Administrative Separation for Drug and Alcohol Related Offenses Policy established by the Commanding General, 18th Airborne Corps, applies to all service members under the general court-martial convening authority of the Commander, 18th Airborne Corps and Fort Bragg.  The policy mandates initiation of administrative separation proceedings within 5 calendar days of receipt by the command of credible information that a Soldier, either on or off the installation, while driving or in physical control of a motor vehicle, has a blood-alcohol content of .08 grams of alcohol or greater per 100 milliliters of blood.

	g.  The advisory official noted the applicant states there were 10 individuals who spoke or wrote character references on his behalf to retain him in the Army, but the ASB did not agree with them and focused only on the one DUI incident.  However, nothing in the ASB proceedings indicates the board did not take into consideration his character references and 15 years of service.  In addition, there is no regulatory requirement for a rehabilitative transfer.

	h.  The advisory official stated the applicant was not denied continued service as a result of the Qualitative Service Program and, therefore, he is ineligible for TERA.

6.  The applicant was provided a copy of the HRC advisory opinion and given the opportunity to respond; however, a response was not received.

7.  Army Regulation 600-85 establishes Army policy on alcohol and other drug abuse and identifies assigned responsibilities for implementing the program.  Chapter 7 (Identification, Referral, and Evaluation), paragraph 7-1 (Overview), states the Army recognizes that substance abuse and dependency are preventable and treatable.  Soldiers who abuse alcohol shall receive the education, counseling, and rehabilitation services indicated by the severity of the abuse.  The primary function of the ASAP rehabilitation program is to return the abuser to full duty status with a positive, productive, and healthy lifestyle.  If a unit commander believes a Soldier does not have potential for future service, the Soldier will be processed for administrative separation in accordance with Army Regulation 635-200, as appropriate.

8.  Army Regulation 635-200 sets forth the authority for the separation of enlisted personnel.

	a.  Chapter 1 (General Provisions), paragraph 1-16 (Counseling and Rehabilitative Requirements), shows that rehabilitative measures (i.e., reassignment or transfer) are required prior to initiating separation proceedings for entry-level performance and conduct, unsatisfactory performance, or minor disciplinary infractions/patterns of misconduct.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

		(1)  The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.

		(2)  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction or higher authority, unless authority is delegated.

9.  Army Directive 2013-14 (TERA), dated 10 June 2013, established eligibility criteria for NCO's limiting it to "NCO's denied continued service as a result of the Qualitative Service Program centralized selection board who are serving on active duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his approved ASB proceedings should be voided, he should be transferred to different command, and he should be retained on active duty or, in the alternative, he should be granted TERA with 15 years of active service.

2.  The evidence of record shows the applicant's defense counsel submitted matters for consideration following the ASB proceedings to the separation authority outlining substantive and procedural errors in the ASB that included:

* consideration of the applicant's 15 years of exemplary service, including three combat deployments, versus his one serious mistake
* previous sufficient punishment for the misconduct in the form of a permanently-filed GOMOR and relief-for-cause NCOER
* failure to be properly (timely) notified of additional documentation submitted in support of his separation
* separating the applicant violates Army Regulation 600-85 because he is entitled to return to full duty status following his successful completion of ASAP

3.  A legal review of the applicant's separation proceedings was conducted and, despite the contentions of counsel on behalf of the applicant, no legal objection was found to the findings and recommendations of the ASB.

4.  The evidence of record fails to show any regulatory provision requiring a rehabilitative transfer of the applicant.  It also fails to show any regulatory basis to overturn the board's recommendation or the separation authority's decision to separate the applicant under the provisions of Army Regulation 635-200, chapter 14.  Moreover, the evidence of record shows the applicant's entire record of military service was considered during the administrative separation process.

5.  After a thorough and careful review of the evidence of record, the applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable.

6.  Thus, despite the applicant's contentions, he provides insufficient evidence to void the separation action.  Therefore, the applicant's administrative separation proceedings are deemed proper and correct and there is no basis for voiding the separation action.
7.  The evidence of record shows the applicant is ineligible for early retirement under the provisions of TERA.

8.  In view of all of the foregoing, there is an insufficient basis for granting the applicant's 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 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)                                         AR20130021935



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ABCMR Record of Proceedings (cont)                                         AR20130021935



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