IN THE CASE OF:	  

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140020815 


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 earlier request to change his narrative reason for separation.

2.  The applicant states:

	a.  He wants his narrative reason for separation changed to completion of required active service.

	b.  He wants this change to reflect the injustice of the nature of the initial finding.  The Army Discharge Review Board (ADRB) indicated the initial findings were unjust and the character of service should never have been under other than honorable conditions.

	c.  His narrative reason for separation indicating in lieu of trial by court-martial is having the same effect as a discharge under other than honorable conditions would have.  He is being denied employment and other assistance.

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Standard Form 600 (Chronological Record of Medical Care)
* DA Form 638 (Recommendation for Award)
* three character-reference letters



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 AR20100015747 on 7 December 2010.

2.  The applicant's contentions and supporting documentation are new evidence that warrant consideration by the Board at this time.

3.  Having prior enlisted service, the applicant was appointed as a warrant officer in the U.S. Army Reserve on 26 June 1998.  He was promoted to chief warrant officer two effective 26 June 2000.

4.  He was ordered to active duty as a member of the U.S. Army Reserve effective 3 February 2003 in support of Operation Enduring Freedom.

5.  On 10 March 2004, charges were preferred against him for one specification of wrongfully possessing and consuming alcohol, one specification of wrongfully having sex with an enlisted Soldier, and one specification of wrongfully and dishonorably distributing alcohol and consuming alcohol with enlisted Soldiers.

6.  On 10 April 2004, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested resignation for the good of the service (RFGOS) in lieu of trial by court-martial under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-13.

7.  In his request for resignation, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting resignation, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if his resignation request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  The separation authority approved his request for RFGOS in lieu of trial by court-martial under the provisions of Army Regulation 600-8-24, paragraph 3-13, and directed the issuance of a discharge under other than honorable conditions.

9.  On 2 August 2004, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 25 (Separation Authority) – Army Regulation 600-8-24, 
paragraph 3-13
* item 26 (Separation Code) – DFS
* item 28 (Narrative Reason for Separation) – in lieu of trial by court-martial

10.  On 5 August 2005, the ADRB upgraded his character of service to general under honorable conditions.  The ADRB proceedings indicate the board carefully examined his record of service during the period of enlistment under review.  There was full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offense.  The board did not condone his misconduct; however, determined the characterization of service was inequitable.  The board found his misconduct was partially mitigated by the overall length and qualify of his service.  Accordingly, the board voted to grant partial relief in the form of a change in the characterization of service to general under honorable conditions.  The ADRB was satisfied that the reason for discharge was both proper and equitable and voted not to change it.

11.  On 7 December 2010, the ABCMR denied his request to change his narrative reason for separation.  The ABCMR determined the narrative reason for his separation shown on his DD Form 214 was correct based on his voluntary RFGOS in lieu of trial by court-martial for misconduct.

12.  He provided medical documentation showing he was treated for low back pain in May and June 2004.

13.  He provided a DA Form 638 that shows he was awarded the Army Commendation Medal in February 2004.

14.  He also provided three character-reference letters from a fellow Soldier, former supervisor, and Veteran Service Officer who attest:

* the applicant was a valuable asset to the battalion
* he displayed great leadership qualities
* he was a good Soldier
* he was an asset to the office
* his customer service and interpersonal skills were second to none
* he was dependable, honest, hardworking, and his integrity never wavered
* he donated his time and experience to assist other veterans
* he was straight forward, honest, and sincere

15.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers serving on active duty for 30 days or more.  Paragraph 3-13 states an officer may submit a request for RFGOS in lieu of general court-martial (cannot submit unqualified resignation) when court-martial charges have been preferred against the officer with a view toward trial by general court-martial or the officer is under a suspended sentence of dismissal.  An officer under court-martial charges or under investigation with a view toward court-martial will be retained on active duty until final disposition of the charges or investigation or until the officer's RFGOS is approved.  An RFGOS will be expeditiously forwarded by the commander exercising general court-martial jurisdiction direct to the Commander, U.S. Army Human Resources Command.  A convening authority will not take action in a case until the Secretary of the Army or delegate acts on the RFGOS.  An officer separated under this paragraph normally receives characterization of service of under other than honorable conditions.  An officer who resigns for the good of the service (regardless of the character of service received) is barred from rights under laws administrated by the Department of Veterans Affairs based on the period of service from which the officer resigned.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD code DFS applies to Soldiers resigning under Army Regulation 600-8-24, paragraph 3-13, by reason of in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his narrative reason for separation should be changed to completion of required active service so he can obtain a better job and qualify for veterans' benefits.  However, a narrative reason for separation is not changed for the purpose of enhancing employment opportunities or qualifying an applicant for veterans' benefits.  Each application is reviewed to determine whether the preponderance of the evidence shows an error or injustice exists and, if so, what relief is appropriate.

2.  The evidence of record supports his contention that the ADRB determined his discharge should not have been under other than honorable conditions.  In 2005, the ADRB upgraded his character of service to general under honorable conditions.  However, the ADRB was satisfied that the reason for his discharge was both proper and equitable and voted not to change it.

3.  The character-reference letters he submitted were carefully considered.  However, they fail to show the charges preferred against him were in error or unjust.

4.  The evidence shows he voluntarily requested RFGOS in lieu of trial by court-martial for misconduct under the provisions of Army Regulation 600-8-24, paragraph 3-13.  His narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his discharge.  There is no error or injustice; therefore, there is no basis for amending his narrative reason for separation.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100015747, dated 7 December 2010.



      _____________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)                                         AR20140020815



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ABCMR Record of Proceedings (cont)                                         AR20140020815



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