IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140008458 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing his reason for separation and upgrading the characterization of his discharge to honorable.

2.  The applicant states that since leaving active duty in February 2008, he has served his country, both as a U.S. Government contractor and as a research manager as a Department of Army Civilian (GS-13).  He served multiple tours in Iraq and Afghanistan in direct support to the U.S. Army, North Atlantic Treaty Organization (NATO) Forces, and other government agencies.  He has not been in any type of trouble with the law.  He is current on his child support payments.  He held a "TS/SCI" security clearance while deployed in Iraq from 2008-2010.  He held a secret clearance while serving in Afghanistan during 2010-2013.  His security clearance is still active.  He has recently re-married and has a family again.  His wife is on active duty and he is supportive of her and her career.  He has learned so many valuable lessons from his last duty station.  The main lesson he learned was to always do the right things.  He learned that help is just a click or phone call away.  No matter how things may seem, help and assistance are there for the military member as well their family members.  The reason he is looking to change the characterization and separation code of his service is so he can continue to serve his country either as a civilian, or as a reservist or national guardsman.  His civilian record is clean.  He has continued to renew his religious faith.  He has taken full responsibility for his actions that have put him in his current situation.  In early 2007, he paid the other party the $500.00 debt.  He is asking for a second chance to continue his government service career through the civilian or military sector.  The upgrade and change in his separation will also help him obtain civilian jobs within the Department of Defense.  He appreciates the Board’s time and consideration in reviewing this request.

3.  The applicant provides copies of:

* Standard Form 50 (Notification of Personnel Action), effective 13 April 2009
* DA Form 1256 (Incentive Award Nomination and Approval) with Citation, Narrative, and Certificate, Superior Civilian Service Award, dated              23 December 2012
* DA Form 1256 with Citation, Narrative, and Certificate, Achievement Medal for Civilian Service, dated 29 June 2012
* DA Form 1256 with Citation, Narrative, and Certificate, Commander’s Award for Civilian Service, dated 31 August 2009
* Certificate for the Global War on Terrorism, dated 7 September 2011
* Certificate for the North Atlantic Treaty Organization Medal, for the period 1 October 2011 to 30 June 2012
* DD Form 2906D (Defense Civilian Intelligence Personnel System (DCIPS) Performance Evaluation of Record, for the year 2010) (25 pages)
* DD Form 2906D (DCIPS) Performance Evaluation of Record, for the year 2011 (16 pages)
* a Letter of Recommendation, dated 7 November 2010
* a Letter of Recommendation, undated
* 8 Certificates of Appreciation
* a Certificate of Achievement, dated 4 November 2010

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.  After having had prior service, on 6 April 2004 the applicant entered the Regular Army in the rank of captain, pay grade O-3.

3.  The applicant completed the following training:

* Imagery Intelligence Officer in 2004
* Military Intelligence Officer Tactical Intelligence Training in 2004
* Military Intelligence Officer Advance Course in 2004
* Counterintelligence Agent in 2005

4.  Orders Number 018-034, U.S. Army Human Resources Command (HRC), dated 18 January 2007, announced the applicant's promotion to major (MAJ), pay grade O-4 effective 1 February 2007.  Orders Number 029-003, HRC, dated 29 January 2007, revoked the applicant's promotion to MAJ.

5.  On 21 February 2007, he accepted nonjudicial punishment (NJP) for the following offenses:

* making a false official statement with intent to deceive
* dishonorably failing to pay a debt
* adultery

6.  The discharge packet is missing from his military records; however, his 
DD Form 214 shows he was administratively discharged on 29 February 2008, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, due to unacceptable conduct.  His service was characterized as under honorable conditions (General).  He completed 3 years, 10 months and 25 days of creditable active duty service during this period.  He was given a separation program designator (SPD) code of "JNC."  The reason for his discharge was unacceptable conduct.

7.  On 18 March 2009, the Army Discharge Review board (ADRB) considered the applicant's request to upgrade the characterization of his discharge to honorable.  
The ADRB carefully reviewed the applicant's military records, the issues, and the independent evidence submitted by the applicant.

	a.  Evidence of record at the time showed that the applicant had been notified on 21 February 2007 of the commander's intention to initiate elimination proceedings under the provisions of Army Regulation 600-8-24 due to misconduct, moral or professional dereliction.  The applicant had been directed to show cause for his retention in the Army for having committed adultery, failing to pay a debt, and making a false official statement.  The applicant was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  On 23 July 2007, a board found that the applicant had committed the above offenses and recommended his separation with an under other than honorable conditions discharge.  The Ad Hoc Review Board recommended that the applicant's elimination be accepted with issuance of a general, under honorable conditions discharge.  On 9 January 2008, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed that the applicant be discharged accordingly.

	b.  The ADRB determined his discharge was both proper and equitable and voted to deny relief.

8.  Army Regulation 600-8-24 states:

	a.  An officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.  An officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	b.  Paragraph 4-2b provided for the involuntary release of officers from active duty for misconduct, moral or professional dereliction, and/or when their degree of efficiency and manner of performance required release from active duty or elimination from the service.  When an officer's conduct and performance warranted relief from active duty, then the officer's records and all available evidence would be forwarded for consideration by the Department of the Army Active Duty Board (DAADB).  The recommendation of the DAADB was approved by the Secretary of the Army.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JNC was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 600-8-24, paragraph 4-2b for unacceptable conduct.

10.  A review of the documents provided by the applicant show that after his discharge he served with the Army as a civilian beginning in 2009.  He has received three service awards, two successful performance evaluations, letters of recommendation and appreciation, and numerous certificates of appreciation and achievement.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected by changing his reason for separation and upgrading the characterization of his discharge to honorable because he wants to continue his government service career through the civilian or military sector.

2.  The record shows he accepted NJP for three offenses, which prompted his commander to initiate elimination proceedings.

3.  The available evidence shows his elimination was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The seriousness of his indiscipline greatly diminished the quality of his service.  Accordingly, it does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service as being less than fully honorable.  Therefore, he is not entitled to an upgrade of his characterization.

6.  There is no apparent basis for removal or waiver of his disqualification that established the basis for his discharge.  While his desire to continue his service to the U.S. government is commendable, there are no provisions authorizing the change of a character of service or narrative reason for separation for this purpose.

7.  His record of post-service conduct is noted; however, it does not sufficiently mitigate the deliberate acts of indiscipline he committed during his military service.

8.  In view of the above, the applicant's request should be denied.



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)                                         AR20140008458



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ABCMR Record of Proceedings (cont)                                         AR20140008458



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