IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20140013859 


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 reinstatement as an Active Guard/Reserve (AGR) Soldier.

2.  The applicant defers to counsel.

3.  The applicant provides no additional documents in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reinstatement of the applicant in the AGR program, back pay and allowances, and credit towards his active duty retirement.

2.  Counsel states: 

	a.  On 17 August 2011, the applicant was involuntarily separated from his AGR position based on the recommendation of an administrative separation board.  At the time he was separated, the applicant had over 16 years of combined active duty service and received an honorable discharge.

	b.  The applicant's separation was based on his relationship with Staff Sergeant (SSG) A.M.'s wife.  When she and the applicant began dating, she was still married to the SSG.
	
	c.  In 2008, the applicant separated from his wife and began divorce proceedings. Not long after, SSG A.M. and his wife also began divorce proceedings.  The applicant and Mrs. A.M. had no romantic relationship before this time, but during this period, both were living apart from their spouses and began spending time together, but were not living together. 

	d.  In late 2009, SSG A.M. told the applicant's commander that the applicant and his wife were in a relationship.  The applicant's commander ordered him to have no contact with Mrs. A.M.

	e.  His divorce was finalized in November 2009 and Mrs. A.M.'s was final in February 2010, after which they became more serious, particularly after they discovered Mrs. A.M. was pregnant with the applicant's child.  They were married in May 2010.

	f.  In July 2010, an investigation concluded that Mrs. A.M. and the applicant had an inappropriate relationship while they were both still married.  As a result, he accepted nonjudicial punishment (NJP) in the form of an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ).  In December 2010, he was told he was being recommended for separation.

	g.  On 17 May 2011, an administrative separation board convened and by a majority vote recommended he be separated with an honorable discharge.  One member recommended he be retained.  The separation authority approved the board's recommendation.

	h.  The discharge was unjust.  The question is not whether his actions were morally right or should in any way be condoned, but did the punishment fit the crime?  He admitted that they had an inappropriate relationship while still technically married to other people and that he did not comply with the "no contact order."  What he did was wrong, but he was punished, and it is unjust to separate him as well.  His misconduct was no reason to discharge a Soldier with 16 years of service.

	i.  Although ill-timed, it was an isolated incident, and this inappropriate relationship had no effect on unit morale or operations.  It was not the traditional adultery case, since both marriages were in name only nor were they living with their then spouses.

3.  Counsel provides:
	
* a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 August 2011
* a [voided] DD Form 215 (Correction to DD Form 214), dated 1 September 2011
* personal statement from the applicant's spouse
* four DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) 
* a Summary of Board Proceedings, dated 17 May 2011
* a memorandum
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.  With prior enlisted service in the U.S. Marine Corps, the applicant enlisted in the U.S. Army Reserve (USAR) on 13 September 2004.  On 15 February 2005, he was ordered to active duty in the AGR program.

3.  Counsel provides:
	a.  four NCOERs rendered for various rating periods between 13 October 2008 to 
01 June 2010 and 19 September 2011 to 18 September 2013, which basically show he received at least successful ratings and mostly favorable comments while on active duty and in the USAR.

	b.  a Summary of Board Proceedings, dated 17 May 2011, which shows that an administrative separation board convened to consider whether the applicant should be discharged from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12c.  The applicant and his counsel were present along with supporting witnesses that included the applicant's current wife, former battalion commander, battalion executive officer, former station commander, first sergeant, and two recruiters.  After hearing the testimony of the applicant and the supporting witnesses, the administrative separation board found that the applicant did in:

		(1)  September 2009, make a false official statement to a senior NCO that he was not having a relationship with Mrs. A.M;

	 	(2)  October 2009, fail to obey a lawful order issued by an NCO to stop having contact with Mrs. M;

		(3)  March 2009, have an inappropriate relationship with Mrs. A.M.

	c.  In view of the foregoing, the separation board recommended that he be discharged from the Army and that his service be characterized as honorable.
4.  On 17 August 2011, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  He was issued an honorable discharge.  This DD Form 214 shows in:

* item 24 (Character of Service), "Honorable"
* item 25 (Separation Authority), "Army Regulation 635-200, Chapter 4"
* item 26 (Separation Code), "KBK"
* item 27 (Reentry Code), "1"
* item 28 (Narrative Reason for Separation), "Completion of required service"

5.  On 1 September 2011, he was issued a DD Form 215, which shows his separation code was corrected to read JBK. 

6.  On 22 August 2014, he was issued a DD Form 215, which voided the DD Form 215, dated 1 September 2011.  This DD Form 215 corrected the DD Form 214, dated 
17 August 2011, to show in:

* item 12a (Date Entered Active Duty), "20050214"
* item 25, "Army Regulation 635-200, Chapter 14-12c"
* item 26, "JKQ"
* item 27, " 3"
* item 28, "Misconduct (Serious Offense)"

7.  References:

	a.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Army Regulation 135-18 (The AGR Program), paragraph 2-3, states in part:

		(1)  Soldiers may submit applications for subsequent reentry in the AGR program following a break of 2 or more calendar days, in that status, to the authorities indicated below.  These authorities will announce the procedures and the files or records required for inclusion with the application.  The addressees will review the application and provide recommendations by endorsement.  Applications from Soldiers who do not qualify under Table 2-1, or who have a non-waivable disqualification under Table 2-3, or who fail to meet any additional requirements prescribed by the Chief, Army Reserve or Chief, National Guard Bureau, will be disapproved and returned to the applicant.  

		(2)  Table 2-3 (Non-waivable disqualifications for entry in the AGR Program), Rule E, states that the applicant has a non-waivable disqualification if he or she was (involuntarily) removed from active duty, including duty in an AGR status for cause, to include unsuitability or unfitness (other than temporary medical disability) for military service.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for reinstatement of the applicant to an AGR position, payment of all back pay and allowances, and credit towards his active duty retirement has been carefully examined and found to lack merit.

2.  Evidence shows that the applicant was investigated for having an inappropriate relationship, disobeying a lawful order, and making a false statement to an NCO.  The violations committed by the applicant resulted in him receiving NJP under the UCMJ, appearing before an administrative separation board and being discharged for misconduct (serious offense) with an honorable discharge.  

3.  He was represented by counsel and benefitted from an administrative separation board, in which he was personally present to argue the points he has brought forth in this case.  His administrative discharge received a legal review, and all aspects of his administrative discharge appear to have been adhered to.

4.  The imposing commander's function is to make a decision as to whether or not a Soldier committed the offense in question and render an appropriate punishment if necessary.  These decisions will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence or they failed to follow the applicable regulations.  

5.  In view of the foregoing, he is not entitled to 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 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)                                         AR20140013859





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ABCMR Record of Proceedings (cont)                                         AR20140013859



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