IN THE CASE OF:	  

		BOARD DATE:	    6 August 2015

		DOCKET NUMBER:  AR20140019585 


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 reconsideration of his previous request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 June 2013 to show his narrative reason for separation as loss of military occupational specialty (MOS) vice unacceptable conduct.

2.  The applicant states, in effect, he is providing a new argument and new evidence that was not previously considered.

3.  The applicant provides:

* a self-authored statement to the Deputy Commander, U.S. Army Criminal Investigation Command (USACIDC)
* five memoranda, dated between 27 March 2012 and 2 January 2013
23 March 2012
* DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers), dated 7 September 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130022337, on 20 August 2014.

2.  As a new argument, the applicant states his discharge for unacceptable conduct was the result of a racially biased commander whose actions were arbitrary and capricious despite the recommendations of two separate boards.

3.  As new evidence, the applicant provides a self-authored memorandum, dated 18 March 2013, to the Deputy Commander, USACIDC (commonly referred to as CID), wherein he stated, in part:

	a. The Equal Opportunity (EO) investigation was not substantiated based on racial bias; however, it did identify procedures and regulations were not followed which may have led to the perception of racial bias.  He had reported he was racially biased against by Lieutenant Colonel (LTC) DH, the battalion commander that recommended him for elimination, after a CID board convened and recommended he be retained in the CID program.  LTC DH had a suspension of favorable actions (flag) placed against him and two other black officers while allowing a white officer who was part of the same investigation remain "un-flagged" and in command of the unit.  LTC DH also directed he disenroll from his college class during the time he was not flagged, wrote him an unfair relief for cause (RFC) officer evaluation report (OER) when other agents who committed the same offenses did not receive RFC OERs, and he fostered a hostile command climate.

	b. The applicant referenced statements made by various members of his unit that he contended contradicted LTC DH's assertion that he did not inform anyone on his staff to inform him (the applicant) he was not authorized to take college classes, he did not discuss his award with another staff member, and did not disapprove the award.  He requested an appeal of the EO findings based on inconsistencies and conflicting statements provided by LTC DH.  His statements clearly needed some follow-up questions to clarify if he did tell his staff to deny his request to go to school as documented in statements by two majors.

4.  The applicant does not provide a response from the Deputy Commander or any evidence that shows the EO investigation was subsequently found to be in error.

5.  Having had prior enlisted service, the applicant was appointed as a U.S. Army CID Special Agent Reserve warrant officer (WO) on 12 December 2008 with a concurrent call to active duty.  He was promoted to the rank/grade of chief WO two (CW2)/WO2 on 12 December 2010. 

6.  On 18 August 2011, the applicant received a general officer memorandum of reprimand (GOMOR) from Major General (MG) RA, Acting Commander Fort Bragg, Fort Bragg, NC.  MG RA stated, in part:
	a.  The applicant was being reprimanded for engaging in an adulterous sexual relationship and for dereliction in the performance of his duties as the Chief, Fort Bragg CID Drug Suppression Team (DST).  He repeatedly targeted civilians without proper authorization, used CID funds to make controlled drug purchases without following proper procedures, and conducted personal business during official drug suppression operations which jeopardized the safety of both civilians and military personnel present during the operations.

	b. His actions showed a complete lack of judgment and called into question his ability to lead Soldiers.  Officers set the standard each and every day regardless of the circumstances.  His conduct and professionalism fell far below the standards expected of a commissioned officer and revealed a disturbing lack of maturity and judgment.  He expected his future conduct to exemplify the personal and professional standards of the command.  Any failure to do so may result in disciplinary action.  The GOMOR was an administrative measure and not imposed as under the Uniform Code of Military Justice.

7.  The applicant submitted a rebuttal to the GOMOR and both his Group Commander, Colonel (COL) JA and Battalion Commander, LTC DH, recommended the GOMOR be filed in his official military personnel file (OMPF).  MG RA subsequently directed the GOMOR be filed in his OMPF.

8.  In November 2011, the applicant received a RFC OER for the rating period 1 February to 2 November 2011, for his duties as Team Chief, CID DST.  His rater and senior rater was LTC DH, Battalion Commander, 32nd Military Police Detachment (CID).  LTC DH stated the applicant had no potential for further service in his career field due to revocation of his credentials.  This OER stated, in part:

	a.  [The Applicant] was relieved after a CID Standards of Conduct Office (SOCO) inquiry found he committed adultery and conduct unbecoming an officer while on duty as a CID Special Agent by engaging in sexual intercourse with a woman in various locations in his work area inside the Fort Bragg CID office and then continued to make unwanted advances towards the woman after she told him she was ending the relationship.

	b.  A second SOCO inquiry found [The Applicant] was derelict in his duties while serving as the supervisor of the Fort Bragg DST when his personal activities in a night club that was being targeted compromised the identity and safety of DST investigators.  The second inquiry also found [The Applicant] made a false statement by falsifying financial records regarding the use of CID funds intended for drug suppression operations.  He (LTC DH) directed the RFC.

9.  On 30 January 2012, an Agent Accreditation Review Board (ARB) convened to determine whether the applicant had violated certain regulatory provisions; whether such violations, if they occurred were a basis for elimination from the CID program; and whether he should be retained or eliminated.

	a.  By unanimous vote, the ARB agreed the applicant's actions did violate certain regulatory provisions concerning indiscretion, disaffection, breach of discipline, or abuse of privilege that could have adversely affected the performance of criminal investigative duties and he lacked the character or moral integrity necessary for the proper performance of criminal investigative or other CID program duties.

	b.  By a 2 to 1 vote, the ARB recommended the applicant be retained in the CID program and placed on a 2-year probationary period.

10.  In a memorandum to the applicant's Group Commander, dated 27 March 2012, MG DQ, Commander, USACIDC, Quantico, VA, disapproved the ARB's recommendation and directed the applicant be eliminated from the CID program (emphasis added).  He stated under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), you (the Group Commander) are required to initiate a separation request for actions committed by a WO that preclude the WO from performing in his MOS.  Accordingly, you are required to initiate the request based on [The Applicant's] loss of MOS qualification.

11.  On 7 September 2012, an Army Regulation 15-6 (Procedures for IO and Board of Officers) investigative board met to consider all evidence concerning allegations against the applicant of moral and/or professional personal misconduct.

	a. The board determined that a preponderance of the evidence supported a finding that the applicant had engaged in acts of personal misconduct, moral or professional dereliction, and conduct unbecoming an officer by engaging in an adulterous sexual relationship with a woman who was not his wife.

	b. The board further determined that a preponderance of the evidence supported a finding that the applicant had failed to ensure agents under his authority understood the correct procedures for conducting drug suppression operations against civilian subjects.

	c. The board recommended that the applicant be eliminated from the Army for misconduct and moral or professional dereliction, with an honorable characterization of service.

12.  On 8 April 2013, the Department of the Army Board of Review for Eliminations recommended the applicant be involuntarily eliminated from the Army based on misconduct and moral or professional dereliction, with an honorable characterization of service.  On 18 April 2013, the appropriate authority approved the recommendation and directed the applicant be discharged based on misconduct and moral or professional dereliction with an honorable characterization of service.  On 17 June 2013, he was discharged accordingly.

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2b, by reason of unacceptable conduct, with a separation program designator (SPD) code of JNC, and an honorable characterization of service.

14.  On 14 May 2014, the Army Discharge Review Board (ADRB) denied the applicant's request to correct his DD Form 214 to show he was discharged due to loss of his MOS.  The ADRB found the applicant's discharge was both proper and equitable.

15.  Army Regulation 600-8-24, paragraph 4-2b, states that misconduct includes conduct or actions that result in the loss of a professional status, such as withdrawal, suspension or abandonment of professional license, endorsement, or certification that is directly connected with or is necessary for the performance of one's military duties.

16.  Army Regulation 635-5-1 (SPD Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of JNC is the correct code for Soldiers discharged under Army Regulation 600-8-24, paragraph 4-2b and "unacceptable conduct" is the corresponding entry for the narrative reason for separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that LTC DH was prejudiced against him is noted; however, as he himself stated, the EO complaint against LTC DH was not substantiated based on racial bias.  Regardless, the evidence of record confirms two SOCO inquiries found he had committed adultery and was derelict in the performance of his duties.  The ARB also determined his actions could have adversely affected the performance of his duties and he lacked the character or moral integrity necessary for the proper performance of CID duties.  As a result of his misconduct, MG DQ directed he be removed from the CID program. 

2.  A subsequent AR 15-6 board also recommended the applicant be eliminated from the Army for misconduct as did a Department of the Army elimination board. 

3.  On 14 June 2013, he was discharged under the provisions of Army Regulation 600-8-24-200, paragraph 4-2b for unacceptable conduct.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, paragraph 4-2b.This is the only valid narrative reason for separation permitted under that paragraph.  His narrative reason for separation is correctly shown on his DD Form 214.  There is no error or injustice in this case.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20130022337, dated 20 August 2014.



      ____________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)                                         AR20140019585



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ABCMR Record of Proceedings (cont)                                         AR20140019585



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