BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140012798 


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, correction of his records by setting aside the Board of Inquiry (BOI) conducted on 23 September 2013 and correcting the separation authority, narrative reason for separation, and separation program designator (SPD) code pertaining to his discharge.

2.  The applicant states the BOI that recommended his separation from the Army made findings contrary to the evidence and was influenced by the President of the BOI who was hostile to him and his defense attorneys.

   a.  He states the SPD code of "JNC" (Unacceptable Conduct) would not have been used to characterize his discharge but for the BOI's findings.

   b.  He states Colonel (COL) A____ T. R____, who was a BOI member, had an excellent view of the evidence.  His comments show he did not believe the Government presented sufficient evidence to show that the alleged offense occurred.  He picked up on the fact that the applicant's ex-girlfriend was trying to do everything she could to discredit him, and COL R____'s comments about the "victim" of the alleged domestic violence are consistent with the evidence presented.  

   c.  He points out the letters from both of his attorneys (Mr. T____ S. M____ and Mr. W____ E. C____) make the very same observations.  Mr. C____ noted that COL S____ R. M____, the President of the BOI, was antagonistic toward the applicant and his defense attorneys, but favorable toward the Government.  He also noted how the legal advisor to the BOI cut off his attorney's attempts to ask questions of a witness from whom the BOI sought testimony.
   
   d.  He states COL R____ believed the adultery allegation was true and might have been service discrediting, but it was a "recoverable offense."  He did not believe that under the circumstances it was prejudicial to good order and discipline.

   e.  The applicant states, contrary to the BOI's findings, he did not "struggle to perform" his duties as a company commander.  He acknowledges that he received a referred Officer Evaluation Report (OER) and his OER appeal was denied.  He also acknowledges one administrative error (involving a Soldier who came up positive on a urinalysis test), which was subsequently corrected.  He attributes the error to having relied on the recommendations of the battalion command sergeant major and executive officer.  He acknowledges that he did not process a separation action as quickly as the chain of command thought he should have (i.e., while the Soldier was still under his command).  He notes that his rater viewed this as making a poor decision and this conclusion is reflected on the OER; however, he rejects this conclusion.  He adds that he did provide the gaining command information about the Soldier and the decision was subsequently made to retain him.

   f.  He concludes by stating the evidence he provides shows the SPD code is unduly harsh under all of the circumstances.  The BOI made conclusions that were not supported by the evidence and they were used to support the unfair and harsh characterization of separation.

3.  The applicant provides copies of a message requesting orders, discharge orders, BOI transcript, two letters from his attorneys, and six character letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard of the United States and Alabama Army National Guard from 12 April 2000 through 16 November 2003.  He was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his military service obligation.

2.  On 23 July 2004, the applicant was appointed as a reserve commissioned officer in the rank of second lieutenant.  He entered active duty on 24 August 2004 and was promoted to captain (CPT)/pay grade O-3 on 1 October 2007.  
He was then appointed as a commissioned officer in the Regular Army.

3.  A review of the applicant's Official Military Personnel File (OMPF) revealed a referred OER covering the period 2 June 2010 through 10 September 2011.  The OER indicates the applicant was involved in a domestic dispute incident and he displayed poor decision-making pertaining to a Soldier's administrative actions.
   
   a.  On 25 July 2012, the applicant appealed the referred OER.  He requested that specific statements be removed from the OER to reflect a fair and unbiased opinion.

   b.  On 17 January 2013, the Officer Special Review Board determined that the overall merits of the case did not warrant the requested relief.

4.  On 23 September 2013, a BOI, appointed by the General Officer Show Cause Authority (GOSCA) –

   a.  Found:

* the applicant struggled to perform his duties as a company commander resulting in a referred OER for the period 2 June 2010 through 
10 September 2011; this was filed in his OMPF
* he did commit misconduct, moral or professional dereliction, in the form of domestic violence and adultery
* he did commit conduct unbecoming of an officer, by the same, domestic violence and adultery
* the findings warranted elimination from the U.S. Army

   b.  Recommended the applicant be eliminated from the U.S. Army with an honorable characterization of service.

5.  On 28 October 2013, the applicant was furnished a copy of the BOI's Report of Proceedings (ROP).  He was advised of his right to submit an appellate brief within seven calendar days and informed of the separation procedures involved.

6.  On 7 November 2013, the applicant's counsel submitted an appellate brief to the GOSCA on behalf of the applicant.

7.  On 25 November 2013, the GOSCA found the BOI proceedings (that included the applicant's appellate brief) were conducted in a fair manner, that the defense had sufficient notice and time to adequately prepare for the hearing, and that a preponderance of the evidence supported the findings of the BOI.  He recommended approval of the recommendation of the BOI to eliminate the applicant from the U.S. Army and that his service be characterized as honorable.  Accordingly, he forwarded the elimination action to the Commander, U.S. Army Human Resources Command (HRC), Fort Knox, KY.

8.  On 6 March 2014, the Army Board of Review for Eliminations –

   a.  Found the Government established by a preponderance of the evidence the applicant:

* did struggle to perform his duties as a company commander resulting in a referred OER for the period 2 June 2010 through 10 September 2011, which was filed in his OMPF
* did commit misconduct, moral or professional dereliction, by the use of domestic violence, and adultery
* did commit conduct unbecoming of an officer, by the same, domestic violence, and adultery

   b.  Recommended the applicant be eliminated from the U.S. Army with an honorable characterization of service.

9.  On 13 March 2014, the Deputy Assistant Secretary (Army Review Boards) approved the Army Board of Review for Eliminations recommendation that the applicant be involuntarily eliminated from the U.S. Army based on misconduct and moral or professional dereliction with an honorable characterization of service.

10.  On 20 March 2014, the applicant acknowledged receipt of the approved elimination action.

11.  Headquarters, U.S. Army Signal Center of Excellence, Fort Gordon, GA, Orders 084-0905, dated 25 March 2014, discharged him from the RA effective 
3 April 2014.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 3 April 2014.  He had completed 9 years, 7 months, and 10 days of active duty service this period.  It also shows in –

* item 25 (Separation Authority):  Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), Paragraph 4-2b (Misconduct and Moral or Professional Dereliction)
* item 26 (Separation Code):  "JNC"
* item 28 (Narrative Reason for Separation):  "Unacceptable Conduct"

13.  In support of his application the applicant provides, in pertinent part, the following documents.

   a.  Commander, HRC, Fort Knox, KY, message, dated 13 March 2014, subject:  Officer Elimination Case, that notified the Commander, U.S. Army Signal Center of Excellence, Fort Gordon, GA, that the Deputy Assistant Secretary (Army Review Boards) approved the elimination of the applicant.  It also shows the applicant was to be discharged from the service with an honorable characterization of service; the authority for separation was the message, dated 13 March 2014, subject:  Officer Elimination Case, and 
AR 600-8-24, paragraph 4-2b, for misconduct and moral or professional dereliction of duty; and the SPD Code to be issued was "JNC."

   b.  BOI ROP, dated 23 September 2013.  A review of the transcript shows, in pertinent part, the parties present, which included the applicant, his civilian counsel, and military counsel.  This review reveals, in pertinent part, the following individuals testified:
   
* Lieutenant Colonel S____ D. B____, Commander, 369th Signal Battalion (applicant's former battalion commander and rater from 2010 to 2012), who testified, in pertinent part –

* "In that OER, I stated that he had poor decision making because he allowed a trainee that tested positive for marijuana to PCS [permanent change of station]"
* "Around Thanksgiving, in November 2010, [applicant] told me that he and the mother of his child had a physical altercation"
* "He served several hours in the Richmond County jail on 
17 December 2010, before he was released"

* COL J____ L____, Commander, 15th Regimental Signal Brigade (applicant's former brigade commander and senior rater from 2010 until 2012), who testified, in pertinent part –

* "All I know is that [applicant] was arrested for having a domestic dispute between him and his girlfriend at the time"
* "When he was arrested, he was not at his place of duty"
* "While he was not present for duty, the Company Executive Officer had to fill in"



* Mrs. D____ M____ (a former Army officer who was married, but separated in 2009 from her (now ex-) spouse; began dating the applicant in January 2011; and is currently married to the applicant) testified, in pertinent part –

* "[Her] divorce was finalized in August 2011"
* "When we were dating, he knew I was married"
* "As an officer, I am aware of adultery being punishable under the UCMJ [Uniform Code of Military Justice]"
* "On one or more occasions [applicant] and I had sexual intercourse…"

   c.  An Acknowledgment of Receipt, dated 28 October 2013, that shows the applicant acknowledged receipt of the BOI ROP and he was advised of his right to submit an appellate brief within seven calendar days.  He was also informed of the separation procedures involved.  He requested a copy of the BOI ROP.

   d.  A request to disprove the findings of the BOI, dated 7 November 2013, submitted by W____ E. C____, Esquire, on behalf of the applicant through the GOSCA to the Commander, HRC.  The request was made on the grounds of both legal error and equity.  Counsel questioned the basis for COL R____ being replaced by COL M____ as President of the BOI in the days leading up to the BOI; he contended that COL M_____ was antagonistic toward the defense and that COL M____ disregarded a letter the GOSCA submitted in support of the applicant.  Counsel offered argument in response to the domestic abuse allegation, the Government's failure to prove the incident by a preponderance of the evidence, and the Government's failure to put on any evidence for the BOI to sustain a finding of adultery when what is required is that the act to be either "contrary to good order and discipline" or "service discrediting."  He also argued that the Soldier who tested positive for marijuana was allowed to PCS solely based on the recommendation of the battalion chain of command.  He further argued that the BOI Legal Advisor deprived the applicant of a fair hearing by exceeding his role of advising the Board on legal matters.
   
   e.  A letter from Mr. T____ S. M____, the applicant's civilian counsel, to the U.S Military Command, dated 2 May 2013, that provides background relating to the filing of the charge of simple battery against the applicant by the alleged victim (his ex-girlfriend and mother of their child), the procedures and actions that followed, and the decision of the prosecutor's office not to prosecute.

   f.  A memorandum of Support from COL A____ T. R____, a BOI member, dated 6 November 2013, who stated he believes the applicant could overcome his previous shortfall, if given the chance.  He pointed out the alleged victim of the domestic violence never testified, there were difficulties in getting her to participate in the prosecution of the charges, and inconsistencies in statements.  Thus, he questioned the validity of the charge.  He did believe the Government proved the allegation of adultery and the conduct was service discrediting, but it was not prejudicial to good order and discipline.  He concluded that this is a recoverable offense.

   g.  A letter from H____ I____, a Licensed Clinical Social Worker, Social Work Services, Fort Gordon, GA, dated 23 October 2012, shows the applicant requested Family Advocacy Program individual treatment services prior to any requirement to do so, which he completed on 3 February 2011.  He voluntarily added additional treatment services through Outpatient Behavior Health Services at the request of a family member and completed that treatment on 2 May 2011.
   
   h.  A Statement Regarding the Command Climate by First Lieutenant (1LT) M____ R. B____, dated 2 February 2012, shows he served with the applicant as his Executive Officer from 10 September 2010 to 10 November 2011.  He stated during that time there was only one instance in which events in the applicant's personal life caused him to be out of the office for a few days (during December 2011).  1LT B____ added the applicant was a friend and confidant, he was aware of certain issues in his personal life, and it would have been very difficult not to bring those issues to work.  He indicated the applicant did not let his personal issues impact his ability to complete daily functions or lead the company.
   
   i.  A supporting statement for applicant's OER appeal given by Staff Sergeant (SSG) L____ A. C____, Operations Noncommissioned Officer (NCO), Company D, 369th Signal Battalion, dated 17 February 2012, states she provided a very positive assessment of the applicant's professional skills and interpersonal style.  She served in the unit from 2 June 2010 to 10 September 2011.  

   j.  A Sensor Sessions Feedback memorandum from SSG L____ A. C____, Equal Opportunity Leader, Company D, 369th Signal Battalion, dated 26 March 2012, who served in the unit from 2 June 2010 to 10 September 2011, provided a summary of positive feedback to Soldiers and subordinates provided in the Sensing Sessions and Equal Opportunity Climate critiques gathered during the applicant's tenure in command.

   k.  A statement regarding the character of the applicant from First Sergeant (1SG) J____ M. M____, Company D, 369th Signal Battalion, from October 2010 to November 2011.  He stated he did not believe the applicant's personal life in any way affected his duty as the company commander.  1SG M____ also stated that he was never aware the applicant was having any issues in his personal life while he served with him.  He added the applicant was always a professional Soldier and ready to serve.

   l.  A statement Regarding the Command Climate from Master Sergeant (MSG) D____ R. G____, Doctrine Branch, Company D, 369th Signal Battalion, from December 2010 to March 2011.  He stated that the applicant was an outstanding commander who always put his Soldiers' needs above his own and always took responsibility for his actions.  MSG G____ also stated that he was not aware of any personal problems the applicant may have had during his command and, in his opinion, if so, they did not affect his ability to command.

   m.  A statement Regarding the Character of the applicant by Sergeant First Class (SFC) R____ D. M____, Alternate Platoon Sergeant, Company D, 
369th Signal Battalion, from November 2010 to November 2011.  He stated that he does not believe the applicant's personal life in any way affected his duty as the company commander.  He provided positive comments regarding the applicant's professionalism and duty performance.  SFC M_____ also stated that the applicant made a decision to retain the Soldier who tested positive for marijuana based on information and input that he provided to him.  He added,
"I thought it was a good call, others did not."  He further stated that he did not provide a statement of support previously because he was advised by senior NCOs not to align himself with someone who was being investigated.  At the time, he made the decision to protect his career and his family.

14.  AR 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Chapter 2 (Responsibilities of the Appointing Authority), paragraph 2-3 (Action of the appointing authority), shows that unless otherwise provided by another directive, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board. Therefore, the appointing authority may take action less favorable than that recommended with regard to a respondent or other individual, unless the specific
directive under which the investigation or board is appointed provides otherwise. The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the investigation or board.

15.  AR 600-8-24 prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 4 (Eliminations), paragraph 4-2 (Reasons for elimination) shows that, while not all inclusive, when one of the following or similar conditions exist, elimination action may be or will be initiated for, in pertinent part, misconduct, moral or professional dereliction, based on acts of personal misconduct or conduct unbecoming an officer.
16.  AR 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JNC" as the appropriate code to assign officers involuntarily discharged under the provisions of AR 600-8-24, paragraph 4-2b, based on misconduct for acts of unacceptable conduct (i.e., moral and/or professional dereliction).  

17.  AR 635-8 (Personnel Processing and Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  Chapter 5 (Preparing Separation Documents), paragraph 5-6 (Rules for completing the DD Form 214), contains item-by-item instructions for completing the DD Form 214. It shows for –

* item 25, obtain correct entry from regulatory directives authorizing the separation
* item 26, obtain the correct entry from AR 635-5-1, which provides the corresponding SPD code for the regulatory authority and reason for separation.  (It is not intended that these codes stigmatize an individual in any manner.  They are intended for Department of Defense internal use in collecting data to analyze statistical reporting trends that may influence changes in separation policy.)
* item 28, this is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the BOI conducted on 23 September 2012 should be set aside and, following that, correction of the separation authority, narrative reason for separation, and SPD code shown on his DD Form 214 because the BOI findings were used as the basis to characterize his discharge.

2.  The evidence of record shows the BOI was appointed by the GOSCA.  The BOI was conducted on 23 September 2013 and found, in pertinent part, the applicant did commit misconduct, moral or professional dereliction, by the use of domestic violence and adultery, and he did commit conduct unbecoming of an officer by the same misconduct.  The BOI recommended the applicant be eliminated from the U.S. Army with an honorable characterization of service

   a.  The applicant was furnished a copy of the BOI's ROP and he was informed of the separation procedures.  Applicant's counsel submitted an appellate brief to the GOSCA on behalf of the applicant.

   b.  The GOSCA reviewed the BOI ROP and the applicant's appellate brief. The GOSCA found the proceedings were conducted in a fair manner, the defense had sufficient notice and time to adequately prepare for the hearing, and a preponderance of the evidence supported the findings of the BOI.  He recommended approval of the BOI's recommendation to eliminate the applicant from the U.S. Army and forwarded the administrative elimination action to Headquarters, Department of the Army, for consideration.
   
   c.  Based on the evidence of record, it is concluded that the BOI was properly conducted and the applicant was afforded due process.  Therefore, there is an insufficient evidentiary basis to set aside the BOI proceedings.

3.  The Army Board of Review for Eliminations found that the Government established by a preponderance of the evidence, in pertinent part, the applicant did commit misconduct, moral or professional dereliction by the use of domestic violence and adultery, and did commit conduct unbecoming of an officer by the same misconduct.  The Board recommended the applicant be eliminated from the U.S. Army with an honorable characterization of service.

4.  The Deputy Assistant Secretary (Army Review Boards) approved the Army Board of Review for Eliminations recomendation that the applicant be involuntarily eliminated from the U.S. Army based on misconduct and moral or professional dereliction with an honorable characterization of service.

5.  The evidence of record shows the applicant's administrative separation under the provisions of AR 600-8-24, paragraph 4-2b, based on misconduct and moral or professional dereliction (acts of unacceptable conduct) with an SPD Code of "JNC" was accomplished in compliance with all requirements of law and applicable regulations.  The evidence of record also shows the separation authority, narrative reason for separation, and SPD code are appropriate and correctly entered on his DD Form 214 in accordance with governing AR's.

6.  In view of the foregoing, there is no basis for granting 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)                                         AR20140012798



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012798



11


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1