IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140011244 


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, in effect, his separation orders be corrected to show the narrative reason for separation as either "Miscellaneous/General Reasons" or "Secretarial Authority."  He also requests the Separation Program Designator (SPD) code, which he understands is currently shown as "DFS," be replaced with a code appropriate for his honorable discharge.

2.  The applicant states, in effect, his case was adjudicated by the Army Discharge Review Board (ADRB) on 10 February 2014 and his discharge was upgraded to honorable.  His narrative reason and SPD code, however, were not changed.  He contends the narrative reason does not fit with an honorable discharge and the SPD code currently shown is erroneous.  He believes these changes should be made as a matter of justice and equity.

3.  The applicant provides:

* a self-authored statement
* ADRB proceedings
* General Officer Memorandum of Reprimand (GOMOR)
* two DA Forms 1059 (Service School Academic Evaluation Report)
* extract from Army Regulation 635-5-1 (SPD Codes)
* DD Form 2808 (Report of Medical Examination)
* resume
* four sets of transcripts from colleges and universities
* three diplomas

* nonresident training transcript
* Standard Form 50 (Notification of Personnel Action)
* award certificate
* three civilian personnel ratings
* recommendation form for the nonresident graduate degree program, Naval War College College of Distance Education
* three letters
* two emails

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Reserve commissioned officer and executed an oath of office on 31 July 1987.

2.  He was subsequently appointed as a second lieutenant in the Illinois Army National Guard (ILARNG) and executed the oaths of office on 19 August 1987.  He completed the Cannon Field Artillery Course at Fort Sill, OK.

3.  He was honorably separated from the ILARNG on 27 July 1990 and he was transferred to the USAR Control Group (Reinforcement).

4.  On 25 July 1991, he was considered for promotion to captain (CPT) by the 1994 Reserve Components Selection Board (RCSB), but he was not selected.

5.  He was considered for promotion to CPT by the 1995 RCSB and he was selected for promotion.

6.  On 13 April 1998, he was enrolled in phase II of the Civil Affairs Officer Advanced Course at the U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, NC.

7.  On 21 April 1998, a military police officer submitted a statement indicating he administered an alcohol-sensor breath test to the applicant and his blood alcohol concentration was determined to be .21 percent.  The military police official opined the applicant was under the influence of an alcoholic substance.

8.  On 21 April 1998 in a memorandum to the Commander, 3rd Battalion, 1st Special Warfare Training Group (Airborne), USAJFKSWCS, the applicant's immediate commander requested the applicant's relief (nonacademic) from the Civil Affairs Officer Advanced Course by reason of misconduct.

9.  The applicant acknowledged receipt of the notification of relief from the course and indicated he did not intend to appeal.
10.  On 22 April 1998, the applicant was counseled by his chain of command for being drunk on duty and lying about having a death in the family.  His commander recommended his referral to the Army Drug and Alcohol Prevention and Control Program, release from the Civil Affairs Advanced Course, and receipt of a GOMOR.

11.  On 23 April 1998, the Commander, 3rd Battalion, 1st Special Warfare Training Group (Airborne), USAJFKSWCS, ordered the applicant's relief from the course in accordance with USAJFKSWCS Regulation 350-12 (Reliefs, Recycles, and Retraining of Resident Students and International Military Students), paragraph 2-3(8), by reason of misconduct.

12.  The applicant's DA Form 1059, dated 22 April 1998, shows he attended the Civil Affairs Officer Advanced Course from 13 to 24 April 1998.  Item 13 (Performance Summary) shows the entry "Failed to Achieve Course Standards." 
Item 16 (Comments) states, "[Applicant] was relieved from the course on day seven (21 Apr 98) due to an alcohol- related incident.  [Applicant] was found in his room intoxicated (.21 breathalyzer) when he was supposed to be in class." 
This form was prepared and authenticated by the course manager and reviewed and authenticated by the commander.

13. On 23 April 1998, he received a written reprimand from the Commanding General (CG), USAJFKSWCS for misconduct.  The GOMOR stated:

On 23 April 1998, you failed to report to the B Company Commander's office as you were required to do.  The B Company Commander discovered you intoxicated in your room.  You had a blood alcohol content of .21%.  Your failure to report for duty as a result of previous overindulgence in intoxicating liquor violates Article 134, UCMJ [Uniform Code of Military Justice].  Additionally, you misled the Commander about a relative's death.  This conduct was unbecoming of an officer under Article 133, UCMJ.

You have violated a position of trust and have discredited yourself, the U.S. Army, and this command.  Your actions cause me to question your future value to the Army.

14.  On 23 April 1998, the applicant acknowledged receipt of the GOMOR and indicated he wished to submit a statement in his behalf.  His statement is not available for review with this case.

15.  After careful consideration of the facts and circumstances pertaining to the applicant, the imposing CG directed permanent filing of the GOMOR in the applicant's OMPF.

16.  Orders R021-4, dated 21 January 1999, issued by Headquarters, U.S. Army Special Operations Command, shows the applicant was discharged from the USAR under honorable conditions (general) by authority of Army Regulation
135-175 (Separation of Officers), paragraphs 2-12(n) (Failure to Meet Standards in a Course of Instruction at a Service School Due to Disciplinary Reasons) and 2-12(o) (Conduct Unbecoming an Officer).  In additional instructions appears the statement "Soldier was relieved due to acts of personal misconduct."  The order does not show an SPD code.

17.  On 16 June 2013, the applicant requested the Army Discharge Review Board (ADRB) upgrade his discharge and change the narrative reason to "Secretarial Authority."

	a.  On 10 February 2014, the ADRB partially granted his request by upgrading his discharge from general under honorable conditions to honorable because the applicant was not afforded a separation board.

	b.  In the ADRB Case Report and Directive, under the paragraph titled "Discharge Under Review Information" subparagraph d (Reason/Authority/SPD/RE Code) shows "Acts of Personal Misconduct, AR 
135-175, paragraph 2-12n and o, DFS, NA."  This is the only place in the applicant's record where any reference to an SPD code of "DFS" could be found.

18.  The applicant provides a self-authored statement that essentially contains his arguments for changing the narrative reason for his discharge and finding the use of the "DFS" code erroneous.

	a.  The ADRB determined his discharge was improper because his rights were not preserved; the narrative reason should therefore be voided because it is a "fruit of the poisoned tree."  The SPD code should therefore also be changed to match his honorable discharge as a matter of equity.

	b.  In reaching its decision, the ADRB was split with two voting to change the reason and three voting against.  This split demonstrates there was material disagreement; that 40 percent of board members favored a change further supports his basis for appeal.

	c.  He was given a general discharge for an isolated incident: failing to report for duty due to being intoxicated.  The "DFS" code is reserved for serious offenses wherein officers, caught "dead-to-rights," tendered resignations rather than face court-martial.  This SPD code puts him in the same category as sexual predators, swindlers, deserters, and other serious offenses.  He did not know the narrative reason and SPD code for his discharge prior to his personal appearance before the ADRB.  Had he known he believes he would have been able to prepare arguments that would sway the board's decision to change narrative reason and SPD code.

	d.  His self-authored statement provides the background of his case and summarizes his hearing before the ADRB.  In their consideration of his current request, he requests the Board:

* analyze whether it is equitable for the narrative reason to remain unchanged when the character of his discharge has been upgraded to honorable
* whether it is equitable to keep the SPD of "DFS" unchanged in light of the serious nature of the offenses it represents, and how it has negatively affected him in the past
* consider the SPD of "DFS" as improper, and change it because it is clearly and obviously erroneous

	e.  The applicant wanted to especially note that, while there are two places in the GOMOR's supporting documents where the phrase "drunk on duty" appears, this phrase is not correct.

	f.  This contention is supported by the fact the GOMOR does not use this phrase.  

* the GOMOR states there was a "failure to report for duty due to previous overindulgence"
* the Academic Evaluation Report (AER) contains the comment "[applicant] was found in his billets intoxicated when he was supposed to be in class"
* this is important because of the disparity in possible punishments under the Uniform Code of Military Justice between being drunk on duty and prior wrongful indulgence
* drunk on duty carries a bad conduct discharge, forfeiture of all pay, and 9 months confinement
* prior wrongful indulgence carries 3 months confinement and forfeiture of two-thirds pay for 3 months

19.  He continues in his self-authored statement:

	a.  Because he was at various times in the Army National Guard and U.S. Army Reserve, no comprehensive DD Form 214 (Certificate of Release or Discharge from Active Duty) exists.

	b.  He had only a vague understanding of what an SPD code was prior to his ADRB hearing, and did not realize what his SPD code meant until that hearing.  Had he known, he would have presented cogent arguments as to why it should be changed.  Even without his input, however, the board was still split on this matter.  The applicant takes this opportunity to present his evidence.

	c.  Assigning him an SPD of "DFS" was clearly wrong because:

* there was no trial by court-martial in his case
* he did not tender a resignation under chapter 3, Army 
Regulation 600-8-24, nor did he resign
* officers discharged with an SPD code of "DFS" receive an under other than honorable conditions discharge; his was general under honorable conditions

	d.  He has included an appendix to his self-authored statement wherein are cited past ADRB cases taken from the reading room.  These cases clearly show:

* all "DFS" SPD cases are serious offenses
* all indicate impending trial by court-martial
* all involve the actual tendered resignation of the officer concerned
* all Soldiers received an under other than honorable conditions punitive discharge
* none of these elements apply to his case

	e.  In 2006, he attempted to enlist in the Army.  His intent was to serve.  Although his military physical (included in his application) showed he was "fit for service," his general discharge required a waiver.  His attempt to enlist was disapproved by an O-3; and he believes the gravity of a "DFS" code must have dissuaded the O-3 from sending the request for waiver any higher.

	f.  When he attempted to enlist, he had seen success in his civilian career.  He had taken courses in Islam and terrorism at Johns Hopkins, and was in superb physical condition.  Studies show Soldiers who returned to military service with a waiver after being discharged for misconduct were retained longer and were recognized with more awards in theater.  He might have been good for the Service had he been given the chance.  He believes, in effect, the mischaracterization of his discharge unjustly prevented him from enlisting in 2006.
	g.  The narrative statement shown for his discharge is "acts of personal misconduct."  The designated narrative statement associated with a "DFS" SPD code is "Resignation In Lieu of Court-Martial."  Because there was no code or associated narrative reason for his situation, the person preparing his discharge order must have improvised.  In fact, he should never have been discharged.

	h.  He believes it would be unjust to simply replace the SPD code with another.  In searching past ADRB cases, he could find none comparable to his, and he believes this further bolsters his argument the discharge, and associated SPD code with narrative reason, were inequitable and improper.

	i.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) defines an honorable discharge.  Since the ADRB has upgraded his discharge to honorable, his reason for discharge should also be upgraded.

	j.  When the ADRB found his discharge was improper, this meant the Army did not follow law and regulation.  If the discharge, as a whole, was deemed improper, how would it be proper to assign him a derogatory SPD?

	k.  He was chosen for a 6-month internship in Izmir, Turkey with the G-3 of the North Atlantic Treaty Organization, Allied Land Command, starting August 2014.  He had presented other post-service accomplishments to the ADRB, which included graduating "With Highest Distinction" from the U.S. Naval War College and winning the Admiral Richard G. Colbert Memorial Prize, awarded to the student who composes the best essay on a strategic, military, political, economic, legal, or tactical topic.  He has been an actor and screenwriter as well as an independent scholar.  In effect, he feels he has taken significant steps to move past his one-time error in judgment and requests favorable consideration.

20.  Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating Soldiers from active duty, and SPD codes to be entered on DD Form 214 (Certificate of Release or Discharge from Active Duty).  It identifies "DFS" as having a narrative reason of "In Lieu of Trial by Court-Martial" and the regulatory authority is shown as Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-13 (Rules for processing resignation for the good of the Service in lieu of general court-martial).

21.  Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  No person has an inherent right to continue service as an officer.  The privilege of service is based on satisfactory performance.

	a.  Chapter 2 prescribes the criteria and procedures governing the involuntary separation of Reserve officers when their retention is not in the best interest of the service.  The retention of officers whose performance of duty or conduct is substandard, deficient in character, or is otherwise unsuited for military service cannot be justified.  Paragraph 2-12 authorizes the involuntary separation of officers due to moral or professional dereliction to include:

* failure to meet the standards in a course of instruction at a service school due to disciplinary reasons
* conduct unbecoming an officer

	b.  A proper Department of the Army Headquarters agency, a commander with respect to a member of that command, and a duly-constituted selection board may originate recommendations for involuntary separation action.

* recommendations will clearly state the reasons for the involuntary separation and will be supported by documents and physical evidence that can be reasonably included in the separation proceedings
* the evidence presented for consideration must be able to stand on its own merits, adhering to one standard, either substandard performance or moral or professional dereliction of duty

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his SPD code of "DFS" is erroneous and should be changed.  The only reference to an SPD code for his case is found in the ADRB Case Report and Directive.  The order which discharged the applicant contains no SPD code.  As such, no correction is required.

2.  The applicant notes the ADRB granted his request to upgrade the characterization of his discharge to honorable, and he contends the narrative reason should be changed to be consistent with this upgrade.  He points out that when the ADRB voted on whether to change the narrative reason, two were in favor and three were against.  Additionally, he points to his post-service accomplishment as proof he merits a change in narrative reason.

3.  While his post service accomplishments are significant and noteworthy, a review of his record and the reasons for discharge show the evidence submitted by the applicant is not sufficient to overcome the basis for his discharge.  The narrative reason accurately reflects the fact that he did not meet the standards of the service school he was attending due to disciplinary reasons, and his conduct was unbecoming of an officer.
4.  Based upon the foregoing, there is insufficient basis upon which to grant 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 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)                                         AR20140011244





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ABCMR Record of Proceedings (cont)                                         AR20140011244



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