IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140015404 


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:

The applicant defers his request and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  The applicant be restored to active duty based on his contention the applicant's discharge was improper and unwarranted.

	b.  Failing that, correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons awarded or authorized) to add the Meritorious Unit Commendation and a Numeral 2 for the Noncommissioned Officer (NCO) Professional Development Ribbon
* item 25 (Separation Authority) as Secretarial Authority
* item 27 (Reentry (RE) Code) as RE-1

2.  Counsel states, in effect: 

	a.  Given the applicant's overall record, his unjust separation, and his conduct since his separation, the Board should either restore him to active duty, or if this is not available, change his RE code to RE-1 and revise the narrative reason for separation to Secretarial Authority.
	b.  Counsel argues three contentions:

* the applicant's discharge under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, was not authorized because the summary court-martial which was to be convened to adjudicate the charges against the applicant was not empowered to adjudge a punitive discharge; the applicant was mistakenly advised by his defense attorney
* the applicant was following the requirements XVIII Airborne Corps Regulation 612-10 (Personnel Processing - Installation In/Out-Processing) and, as this is a directive issued by a general officer, it trumped the orders given to the applicant by his platoon sergeant and first sergeant
* the applicant's leadership overreacted by pursuing legal action; the applicant had already received written counseling statements for what occurred, after which he was illegally discharged

	c.  In support of his arguments, Counsel cites:

* chapter 10, AR 635-200; highlighting the references to punitive discharges, the provisions of the Rules for Court-Martial (RCM) 1003(d), Manual for Courts-Martial (MCM), and the requirements placed on consulting counsel to advise a Soldier who is contemplating a request for discharge
* Article 20, UCMJ (Jurisdiction of summary courts-martial) which prescribes the scope of punishments to be adjudicated by a summary court-martial
* RCM 1301(d)(1) through (2) (Summary court-martial punishment and limitations) which addresses limits to punishments adjudged by a summary court-martial
* RCM 916(d) (Obedience to orders) which discusses a legal defense available to an accused wherein an accused can avoid prosecution if he/she was following lawful orders

	d.  In his addendum, dated 15 September 2014, Counsel expands on his argument concerning his contention the applicant faced disciplinary action for following the requirements of XVIII Airborne Corps Regulation 612-10.

* the applicant was ensuring his subordinate Soldier, specialist (SPC) Axxxxxx Gxxx, completed out-processing requirements as outlined in XVIII Airborne Corps Regulation 612-10
* had this fact been considered by his command and the command staff judge advocate, their application of RCM 916(d) would have cleared the applicant of culpability [counsel asserts by implication the charges, at least in part, were based on the applicant's having his subordinate perform out-processing tasks rather than participate in company-level payday activities, as directed by both the first sergeant and platoon sergeant]
* the closest remedy to correct the errors and injustices incurred by the applicant would be to restore him to active duty along with the corresponding pay, promotion opportunity, and the rights as well as the responsibilities he would have enjoyed had he been able to remain on active duty

3.  Counsel provides:

	a.  Applicant's self-authored statement, dated August 2014.

	b.  Documents initially sent to the Army Board for Correction of Military Records (ABCMR), then forwarded to the Army Discharge Review Board (ADRB) for action as Case Number AR20140006079.

* two letters from Army Review Boards Agency (ARBA), one dated 26 June 2014 with corrected DD 214 and second dated 10 April 2014 (marked Attachments 1 and 4, respectively)
* letter from ADRB, dated 13 June 2014 (marked Attachment 2)
* ADRB Case Report and Directive for Case Number AR20140006079, dated 12 June 2014 (marked Attachment 3)
* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 28 March 2014, with 55 pages attached [sic, only 34 pages found] (forwarded to ADRB) (marked Attachment 5)

	c.  Permanent Orders (PO) 069-34, dated 10 March 2010, issued by U.S. Army Human Resources Command (HRC), showing Company C, 1st Battalion, 5th Infantry Regiment being awarded the Meritorious Unit Commendation for the period 28 October 2008 to 12 September 2009 (marked Attachment 6).

	d.  Regulation Number 612-10, dated 25 May 1999, issued by Headquarters, XVIII Airborne Corps and Fort Bragg (marked Attachment 7).

	e.  Applicant's post-service activities (marked Attachment 8):

* Keiser University Degree Progress Audit
* three Sarasota County Technical Institute Fire Science Academy (SFSA) Firefighter Certifications
* acceptance letter for emergency medical technician program

	f.  Counsel's statement, dated 21 August 2014, (arguments included in paragraph 2 above) with attachments (marked Attachment 9).

* extract from chapter 10, AR 635-200 
* memorandum, dated 22 February 2011, sent by summary court-martial officer, Headquarters and Headquarters Company, 1st Battalion, 505th Parachute Infantry Regiment, subject:  Notification of Summary Court-Martial
* self-authored statement by the applicant, dated 28 July 2014
* statement from former SPC Axxxxxx Gxxx, signed and undated

	g.  Addendum to application, dated 15 September 2014, authored by Counsel and including three additional attachments (arguments incorporated into paragraph 2 above).

* additional self-authored statement by applicant, dated 13 September 2014 (marked Attachment 1)
* copies of DD 149 with initial self-authored statement by applicant, dated August 2014 (already identified above) (marked Attachment 2)
* memorandum from Counsel, dated 21 August 2014 (already identified above in subparagraph f) (marked as Attachment 3)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 June 2005.  After completing initial training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade held was staff sergeant (SSG)/E-6.  

2.  Records show the applicant deployed twice to Iraq, both while assigned to Company C, 1st Battalion, 5th Infantry Regiment:

* 16 January 2006 to 30 November 2006
* 20 September 2008 to 29 August 2009 

3.  Records also show:

	a.  In December 2010, the applicant was a section leader in Company D, 1st Battalion, 505th Parachute Infantry Regiment.  A member of his section, SPC Axxxxxx Gxxx, was preparing for separation from the Army.  
* in the applicant's unit, company-level payday activities included wearing the Class A uniform, a billets and uniform inspection, weapons and vehicle inspections, and packing list layouts
* post policy gave Soldiers 10 days to clear and SPC Axxxxxx Gxxx's separation date was within those 10 days on 2 December 2010
* prior to 2 December 2010, the applicant had told his platoon sergeant that his subordinate, SPC Gxxx, was clearing and should therefore be exempted from payday activities

	b.  On 2 December 2010, the applicant's first sergeant directed the platoon sergeant to tell the applicant to have SPC Gxxx wear a Class A uniform on the following day because of payday activities.

* the platoon sergeant texted this information to the applicant, who responded disrespectfully
* the first sergeant directed the applicant report to him; when he arrived, the applicant responded to the first sergeant in a disrespectful manner by raising his voice several times and by displaying disrespectful body language
* the applicant was counseled in writing by both his platoon sergeant and first sergeant, and told they would be recommending UCMJ action to the commander (emphasis added)

	c.  The applicant was offered nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for two specifications of disrespectful behavior and language toward two superior NCOs.  He demanded trial by court-martial.

4.  On 22 February 2011, the applicant's commander preferred one charge with two specifications alleging a violation of Article 91, UCMJ:

SPECIFICATION 1: In that [the applicant], U.S. Army, at or near Fort Bragg, North Carolina, on or about 2 December 2010, was disrespectful in language and deportment toward First Sergeant Dxxxxx Mxxxx, an NCO [noncommissioned officer], then known by the [applicant] to be an NCO [noncommissioned officer], who was then in the execution of his office, by raising his voice several times and by displaying a lack of respect with his body language, to wit: failing to stay at the position of parade rest.

SPECIFICATION 2:  In that [the applicant], U.S. Army, at or near Fort Bragg, North Carolina, on or about 2 December 2010, was disrespectful in language and deportment toward Staff Sergeant Dxxxxx Cxxxxxx, an NCO, then known by the [applicant] to be an NCO [noncommissioned officer], who was then in the execution of his office, by saying to the said [applicant] [sic], “you should tell him yourself and you don’t intimidate me, I don’t care if you are a Platoon Sergeant you are letting them walk all over our soldiers and if that’s what’s gonna happen you could have my stripes,” or words to that effect. 

5.  The case was referred to a summary court-martial.  In a memorandum, dated 22 February 2011, the summary court-martial officer for the applicant's court-martial notified him of the date and time his summary court-martial would be convened.  The summary court-martial officer stated that the maximum sentence that he could adjudge by a summary court-martial is reduction to sergeant/pay grade E-5 and forfeiture of $1,818.00 of pay per month for one month.  He advised the applicant that he could plead guilty or not guilty to the charges.  He provided additional instructions on the process of the summary court-martial.  The summary court-martial convening authority was a commissioned officer in the rank of lieutenant colonel.

6.  On 24 February 2011, the applicant consulted with counsel, a military Judge Advocate attorney, and, subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

7.  In his request for discharge, he indicated he:

* understood the charges preferred against him under the UCMJ could lead to a punitive discharge
* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* acknowledged he understood the elements of the offense charged and was guilty of that charge or of a lesser-included offense which could also authorize a bad conduct or dishonorable discharge
* was fully advised of the nature of his rights under the UCMJ and, although he had been provided legal advice, the decision was his own
* understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf
* apologized to his command for his actions and the inconvenience his actions caused others
* he authenticated the statement as well as his appointed Judge Advocate
8.  On 10 March 2011, the general court-martial convening authority approved the applicant's request for discharge in lieu of court-martial with the issuance of a general discharge under honorable conditions.  The separation authority also directed the applicant to be reduced to the lowest enlisted rank, if he were to receive an under other than honorable conditions discharge.  On 31 March 2011, he was discharged accordingly.

9.  His original DD Form 214 shows:

	a.  He received a general discharge under honorable conditions in accordance with the provisions of chapter 10, AR 635-200.  Because he received a general discharge, he was not reduced to the lowest enlisted rank and his DD Form 214 shows his rank as SSG, pay grade E-6.  

	b.  The separation code is shown as KFS and the RE code is RE-4.  The narrative reason for separation is listed as in lieu of trial by court-martial.  

	c.  His DD Form 214 also shows he completed 5 years, 9 months and 15 days of net active creditable service.  He was awarded or authorized:

* Army Commendation Medal (2nd Award)
* Army Achievement Medal
* Valorous Unit Award
* National Defense Service Medal
* Iraq Campaign Medal with three bronze service stars
* Global War on Terrorism Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* Ranger Tab
* Combat Infantryman Badge
* Expert Infantryman Badge
* Parachutist Badge

10.  On 12 June 2014, the ADRB conducted a hearing to address the applicant's request for an upgrade of his discharge.  The applicant personally appeared before the ADRB.  Based upon the evidence and testimony evaluated, the ADRB directed:

* the characterization of the applicant's discharge be changed to honorable
* the issuance of a revised DD Form 214
* no change in the reason for separation, the authority for separation, the separation code, or the RE code
11.  Counsel provides:

	a.  Letter from former SPC Axxxxxx Gxxx which essentially states:

* post policy at Fort Bragg, NC permits Soldiers 10 duty days to out-process (clear) prior to departure
* he did not receive papers to begin clearing until 6 days before his departure date; this placed both him and his family under a large amount of unnecessary stress
* his unit had just returned from a long rotation at the Joint Readiness Training Center, Fort Polk, LA; he began to experience some health issues and made a doctor's appointment to address them
* members of his unit were informed payday activities would be conducted on 3 December 2010, the same day as his doctor's appointment and only 5 days before he was to depart
* he had been told by his section leader (the applicant) he would be excused from payday activities, allowed to attend his doctor's appointment, and to continue to clear
* their platoon sergeant apparently failed to inform their first sergeant of his situation until 2 December, the day before payday activities; as a result, despite assurances to the contrary, he was told he would have to participate in payday activities because the first sergeant had not approved his exemption
* for him the main problem was he had already begun to mail his gear home to avoid possible damage during household goods shipment; those items sent included his Class A uniform
* he never intended to cause the applicant or his unit any problems

	b.  Four letters of support from the applicant's former leaders (three officers and one NCO) which state, in effect:

* the applicant showed himself to be a confident and competent leader
* one officer rated him as the best junior leader with whom he had had the opportunity to work
* he was a professional NCO whose presence made his unit stronger; he was the type of leader his NCO would take into combat
* he displayed a strong work-ethic, a can-do attitude, and an impressive ability to multi-task
* although he has committed major missteps, he has shown the potential to improve and could be an tremendous asset to any organization

	c.  Two DA Forms 2166-8 (NCO Evaluation Report), covering the period 1 August 2008 to 27 November 2009, which showed excellent evaluations during his deployment to Iraq and subsequent redeployment to Fort Wainwright, AK.

	d.  Applicant's self-authored statement, dated 28 July 2014, in which he essentially writes:

* he would like to clarify the events that led to his court-martial and discharge
* he was first assigned to Company A, 1st Battalion, 505th Parachute Infantry Regiment at Fort Bragg, NC in January 2010 after being reassigned from Fort Wainwright, AK; he arrived as a sergeant/E-5
* his first-line supervisor was sergeant first class (SFC) Hxxx, who provided a letter of support; while in Company A he went before a promotion board for SSG
* he later moved to Company D of the same battalion and shortly after his arrival he was promoted to SSG
* he initially served as a section leader in Company D, but then his platoon sergeant was relieved; he became the acting platoon sergeant
* while he was attending a military training course another SSG replaced him as platoon sergeant
* he was admittedly not happy, but, being a professional NCO, he returned to his duties as a section leader
* he started to become frustrated because this new platoon sergeant showed himself to be a weak leader
* sometime between mid to late November, the platoon was informed it would be participating in payday activities on Friday, 3 December 2010
* he was asked if any Soldiers should be exempted, he identified SPC Gxxx as requiring an exemption because he was clearing and had a doctor's appointment; the platoon sergeant indicated this would not be a problem
* he mentioned SPC Gxxx's situation on a number of occasions after that and continued to be reassured there would no problem
* on 2 December 2010, the day before payday activities, the applicant again reminded the platoon sergeant about SPC Gxxx's need to be exempted from payday activities; the platoon sergeant stated he had forgotten to tell the first sergeant and he immediately left to see the first sergeant
* while the applicant was on a lunch break, the text conversation took place which later resulted in his being charged with Article 91, UCMJ
* during the 3rd week of December he was offered a field-grade level NJP
* he rejected the NJP and demanded trial by court-martial; his reasoning was, although he had been disrespectful toward his platoon sergeant, his platoon sergeant had been derelict in his duties; this would outweigh his behavior and his chain of command would choose not to pursue the court-martial
* he moved to Company B, same battalion and later was placed for duty in the Brigade S-3 office
* late February 2011, he was informed charges had been referred to a summary court-martial
* he sought legal counsel and was advised of the procedures for a summary court-martial and those for a chapter 10 under AR 635-200
* after learning he was not entitled to legal counsel during a summary court-martial, and that the summary court officer was the S-3 for the same battalion which had preferred charges against him, he sought other options
* he was told he could decline the summary court-martial and have his case addressed in a special or general court-martial, but he was concerned, if found guilty, the result would be a Federal conviction
* he was also told he could request a discharge in lieu of court-martial under chapter 10, AR 635-200; he chose this option
* one implication he did not realize was that a chapter 10 also comes with an RE code of RE-4; had he known that he would have made a different choice

	e.  In his self-authored statement, dated August 2014, the applicant writes:

* he requests the Board favorably consider his requests for changes of narrative reason, RE code, and to add the missing decorations
* because the ADRB upgraded the characterization of his discharge to honorable, the narrative reason should change to Secretarial Authority
* had he realized the summary court-martial was not empowered to adjudge a punitive discharge (which he believes to be a requirement for him to have properly requested a discharge under chapter 10, AR 635-200) he would have proceeded with the summary court-martial
* he believes the worst that would have happened would have been to be reduced in rank
* he also would not have requested discharge in lieu of court-martial had he known it would mean he would be given an RE-4 code
* as an airborne ranger, he would like nothing more than to serve his country as a Soldier again
* regarding the requested decorations, he attached orders showing the award of the Meritorious Unit Citation; he was assigned to the unit at the time of the award
* his records should show he completed both the Warrior Leader Course in 2009 and the Advanced Leader Course (2010); he would therefore qualify for the numeral 2 on his NCO Professional Development Ribbon
* he wanted to point out to the Board errors made by the ADRB
* in the Case Report and Directive, it was indicated he had been reduced to private/E-1 at the time of his discharge but in fact he remained a SSG/E-6 because of the general discharge under honorable conditions
* in the letter notifying him of the results of the ADRB, it suggested he had received his discharge as a result of a special court-martial; his case was never sent to a special court-martial and was the result of his request under chapter 10, AR 635-200
* he respectfully requests favorable consideration of his application

	f.  The applicant's self-authored statement, dated 13 September 2014, essentially states:

* upon further consultation with his attorney and a better understanding of the legal aspects of his case, he would like to revise his original request
* he now requests reinstatement on active duty effective to the date of the Board's decision, recoupment of all salary and accrued benefits (leave dates, etc.), and consideration for promotion to the rank/grade of sergeant first class/E-7
* he sincerely believes the Board will find there was no legal justification for separation in lieu of court-martial under the provisions of chapter 10, AR 635-200 because he was facing a summary court-martial [a forum not authorized to adjudge a punitive discharge]
* this evidence, coupled with his contention the order given by his first sergeant and platoon sergeant was in violation of standing orders given by a general officer (referring to XVIII Airborne Corps Regulation 612-10) should leave no other course of action for the Board than to deem his discharge illegal
* once the Board reaches this conclusion, the next course of action should be to reinstate him to active duty, with all pay and benefits that would accompany reinstatement, and to have his time in service changed to reflect the years of honorable service he would have had were he not illegally separated
* consideration must be given to the effects on his career of this illegal discharge
* as of September 2014, had he still been on active duty, his records would have been evaluated by two Department of the Army-level sergeant first class promotion boards 
* given his impeccable combat record, high level of individual accomplishments, and the fact many of his former peers have already been promoted for a year or more, he believes it is clear he would have been promoted to sergeant first class had he not been discharged
* he expresses appreciation for the Board's attention to detail and believes a careful review will reveal his discharge was both illegal and unjust; the proper remedy would be to grant his requested relief

12.  Manual for Court-Martial (MCM), Part IV, item 15 (Article 91 - Insubordinate conduct toward warrant officer, NCO, or petty officer) details the text of the statute, elements of the offense, and maximum punishments.  For contempt or disrespect toward a superior NCO, the maximum punishment includes a bad conduct discharge. (emphasis added)

13.  The following elements must be satisfied for a finding of contempt or disrespect toward a superior NCO:

* that the accused was a warrant officer or enlisted member
* that the accused did or omitted certain acts, or used certain language
* that such behavior or language was used toward and within sight or hearing of a certain warrant, noncommissioned, or petty officer
* that the accused knew that the person toward whom the behavior or language was directed was a warrant, noncommissioned, or petty office
* that the victim was then in the execution of office
* that under the circumstances the accused, by such behavior or language, treated with contempt or was disrespectful to said warrant, noncommissioned, or petty officer
* that the victim was the superior warrant, noncommissioned, or petty officer of the accused
* that the accused then knew that the person toward whom the behavior or language was directed was the accused’s superior noncommissioned or petty officer

14.  Rule for Court-Martial (RCM), Rule 307 (c)(3) provides:

A specification is a plain, concise, and definite statement of the essential facts constituting the offense charged.  A specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication (emphasis added).  

15.  A specification is sufficient if it expressly or by implication alleges every element of the offense alleged, puts the accused on notice of the offense alleged, and protects the accused against double jeopardy.

16.  RCM 1003(d) (Circumstances permitting increased punishments) describes three situations where, when an accused has been found guilty of an offense or offenses which do not include a punitive discharge as a punishment, proof of prior convictions, or at least 6 months confinement, may, in certain instances, permit a court to impose a punitive discharge.

17.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a Soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the MCM, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial (emphasis added).  Such a request may be submitted  at any time after the charges have been preferred.  The provisions of RCM 1003(d) do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge.  Although an honorable or general under honorable conditions discharge are authorized, an under other than honorable conditions discharge is normally considered appropriate.

   b.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

   c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

18.  AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of the Regular Army RE codes:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 

19.  AR 635-5-1 prescribes the specific authorities, reasons for separating Soldiers from active duty, and Separation Program Designator (SPD) codes to be entered on the DD Form 214.  It identifies KFS as having a narrative reason of "In Lieu of Trial by Court-Martial" and the authority is AR 635-200, chapter 10.

20.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "KFS" has a corresponding RE code of 4.

21.  AR 600-8-22 (Military Awards) prescribes policy and procedures for military awards and decorations.  The NCO Professional Development Ribbon was established by the Secretary of the Army on 10 April 1981.  It is awarded to Active Army, Army National Guard, and U.S. Army Reserve Soldiers for successful completion of designated NCO professional development courses.  Effective 30 March 1989, a service member will be awarded the NCO Professional Development Ribbon with the numeral which identifies the highest level of the NCO education system successfully completed as follows:

* 1 = Bar Ribbon Device = Primary Level
* 2 = Basic Level
* 3 = Advanced Level
* 4 = Senior Level

22.  AR 600-8-22 states the Meritorious Unit Commendation is awarded for exceptionally meritorious conduct in the performance of outstanding service for at least six continuous months during the period of military operations against an armed enemy occurring on or after 1 January 1944.  Effective 1 March 1961, the Meritorious Unit Commendation is authorized for units who display exceptionally meritorious service for at least 6 months.  Included are units performing combat support and service support.

23.  Department of the Army Pamphlet 670-1 (Guide to the Wear and Appearance of Army Uniforms and insignia) provides implementing procedures for the wear and appearance of Army uniforms.  It states, in pertinent part, a unit award is worn by members of that unit who participated in the cited action.  Personnel who did not participate in the cited action, but who are assigned in the cited unit, are authorized temporary wear of some unit awards, to include the Army Meritorious Unit Commendation. 

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests the applicant be restored to active duty and given the corresponding pay, promotion opportunity, and the rights as well as the responsibilities he would have enjoyed had he been able to remain on active duty.  He argues the applicant's discharge, given under the provisions of chapter 10, AR 635-200, was improper, unwarranted, and illegal.  He bases this argument on his contention a chapter 10 is only appropriate when the requesting Soldier is facing a court-martial authorized to impose a punitive discharge as a punishment.  Because the applicant faced a summary court-martial, chapter 10 should not have been offered as an option to the applicant and his discharge was therefore illegal.

2.  Chapter 10, AR 635-200 states "a Soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the MCM, includes a bad conduct or dishonorable discharge (emphasis added), may submit a request for discharge in lieu of court-martial."  

	a.  It should be noted nowhere in the language of this provision does it stipulate a type of court-martial to which the offenses must have been referred.  Nor does it state that the particular court-martial must be authorized to impose the cited punitive discharges before a request can be submitted.  Rather, it states the offenses charged (emphasis added) must authorize one of the cited punitive discharges as part of its maximum punishment.  

	b.  The applicant was charged with being disrespectful in language and behavior toward his first sergeant and platoon sergeant, superior noncommissioned officers.  One of the maximum punishments available for the offense for which the applicant was charged includes a bad conduct discharge.  Although the specifications did not use the word “superior noncommissioned officer,” an element of disrespectful language to a superior noncommissioned officer, the specification was nonetheless proper.  Specification 1 referred to First Sergeant Dxxxx Mxxxx as the First Sergeant, a position and rank/grade senior to the applicant.  By fair implication, the specification covered every element of the offense of contempt or disrespect toward a superior NCO (emphasis added).  A Chapter 10 was therefore a proper and legal option for the applicant to have considered.
3.  Counsel contends the applicant's leadership, and their supporting Judge Advocate, should have dismissed the charges based on the legal defense the applicant was following a lawful order (referring to XVIII Airborne Corps Regulation 612-10, which outlines post clearance policy.)

	a.  In making this contention, Counsel cites RCM 916(d) (Obedience to orders).

	b.  As noted above, the applicant was charged with disrespect.  Records indicate his disrespectful language and behavior resulted from a disagreement related to compliance with post clearance policy.  Although the issue regarding post clearance policy may be tangentially related, the basis of the charges was not disobedience of an order but disrespect.  
	
   c.  The facts and circumstances that led to the applicant's charges include the following:

* the applicant was acting platoon sergeant when another NCO took over; this NCO was of the same rank and, in the applicant's view, was a weak leader
* the applicant gave adequate notice to his platoon sergeant that his subordinate should be exempted from payday activities
* apparently the platoon sergeant failed to properly inform the first sergeant of the subordinate's situation, which could serve to mitigate, but not outweigh, the applicant's disrespectful reaction
* the first sergeant did not direct the subordinate fully participate in payday activities but only instructed him to wear his Class A uniform (not realizing the subordinate had already sent this uniform home)
* the platoon sergeant did not precisely transmit the first sergeant's directive, instead asking the time of the subordinate's doctor's appointment and saying he (the subordinate) would be ready for payday activities (failing to mention the scope of the first sergeant's directive was the wear the Class A uniform)
* based on the applicant's reaction, he apparently thought his subordinate would be required to fully participate in payday activities rather than allowed to attend a doctor's appointment and continue clearing
* the applicant was then disrespectful in language and behavior toward both his platoon sergeant and first sergeant 
* the applicant acknowledges he was disrespectful, but he implies he feels he was justified in his behavior
* the applicant was initially offered NJP, but demanded trial by court-martial
* after being informed of when his court-martial would convene, he requested discharge in lieu of court-martial

	d.  Given the foregoing, the evidence does not support Counsel's contention.

4.  Counsel argues the applicant had already received written counseling statements from both his platoon sergeant and first sergeant which addressed his disrespectful language and behavior.  As such, subsequent legal action (in the form of NJP, UCMJ) should not have been pursued.  Both his platoon sergeant and first sergeant, however, informed him in writing they would be recommending UCMJ action to the commander.  

5.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial (emphasis added).  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

6.  The record supports, and Counsel provides evidence, the applicant was assigned to Company C, 1st Battalion, 5th Infantry Regiment when it was awarded the Meritorious Unit Commendation.  Additionally, his records show he successfully completed both the Warrior Leader Course and the Advanced Leader Course.  As such, it would be appropriate to award a Numeral 2 for his already-awarded NCO Professional Development Ribbon and add this to his DD Form 214.

7.  As to changing the narrative reason for separation and RE code:

	a.  The ADRB evaluated the applicant's case and, based upon that review, directed the characterization of his service be upgraded to honorable.  They did not elect to make any changes in narrative reason or RE code.

	b.  Counsel offers no new evidence that would sufficiently support making a change to either.

	c.  Specifically regarding the amending of the RE code from RE-4 to RE-1, the SPD/RE Code Cross Reference Table confirms the RE code currently shown on his DD Form 214 is correct, given the SPD code.  Additionally, the SPD code shown on his DD Form 214 is the appropriate code based upon the authority for his discharge.  As such, there is no basis upon which to grant relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending block 13 of his DD Form 214 to show the following deleting from his DD Form 214 the Noncommissioned Officer Professional Development Ribbon and adding the:

* NCO Professional Development Ribbon with Numeral 2
* Meritorious Unit Commendation

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* restoring the applicant to active duty, with corresponding pay, promotion opportunity, and the rights as well as the responsibilities he would have enjoyed had he been able to remain on active duty
* amending item 25 of his DD Form 214 to show Secretarial Authority
* amending item 27 of his DD Form 214 to read RE-1



      _______ _   _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)                                         AR20140015404



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ABCMR Record of Proceedings (cont)                                         AR20140015404



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