IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150001062 


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 an upgrade of his service characterization from under honorable conditions (general) to honorable.

2.  The applicant states the circumstances surrounding his discharge involved conduct unbecoming an officer.  He was called to active duty in support of Operations Joint Guard and Joint Endeavor as a Reserve officer with the same individuals he served with over the course of his Reserve career in his New York Reserve unit.  He had known these individuals for many years and served in Operations Desert Shield and Desert Storm with these individuals from August 1990 to June 1991. 

	a.  The main charge against him was gambling with his subordinates.  He will not attempt to deny this charge.  However, it should also be understood that the people he was gambling with were friends from his New York Reserve unit, and the incident took place during the Thanksgiving holiday season at the hotel where he and his friends were staying on Rhein-Main Air Base, Germany.  A lot occurred in this hotel room while he was present; however, his first reason for being there was to ensure his friends and subordinates remained safe during the holiday celebrations.  He knew where everyone was and they were not getting into any trouble because he was in the same room.  He was not drinking excessively nor were there any great infractions other than gambling.  Everyone was off duty, and it was a last minute decision on his part to check on the troops in their room.  

	b.  He was swept up in the moment and sat to play cards and gamble with his friends and combat buddies from New York while they were so far away from home.  Perhaps he was a little lonely during the holidays and gave in to those feelings of loneliness and a need for social contact and acceptance.  

	c.  He kept telling himself that he was doing them a great service by keeping them safe from bar fights, driving under the influence or even the occasional Soldier wanting to hurt him/herself in some way.  He was there, in their face providing them with tough love and keeping a watchful eye.  He thought the active duty commander’s decision to bring charges in these circumstances was a bit extreme.  That is the injustice. 

	d.  He understood what he did was wrong, but once the charges were brought, the punishment had to be heavy handed.  If the charges were never brought and this was handled through non-judicial punishment (NJP), he would have understood.  He would have understood a letter of reprimand.  What he does not understand is why an active duty officer had to slam a Reserve officer by bringing charges when there were many other tools in his tool bag that could have been used to handle this situation effectively.  When the applicant approached the active duty officer about the situation and stated that he believed his handling of the situation to be rather harsh, he simply said, "Just sit it out, you will be ok." 

	e.  He has completed over 17 years of service with the Department of Defense (DoD) since the time of his discharge.  He completed 10 years as a DoD contractor for the U.S. Air Force and Defense Information Systems Agency (DISA) and over 7 years as a DoD civilian with the DISA at the rank of GS-13 and GS-14.  He continues to serve with honor with a top secret-sensitive compartmentalized information security clearance in the field of national defense. He also believes that if this event had occurred today the active duty commander would better understand Reserve component officers and their relationship to their subordinates and friends from their home unit, and the punishment would have better fit the offense.  

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending on 18 December 1986, 7 June 1991, and 12 August 1997
* Outstanding Junior Officer Award, dated 23 January 1996


* a photograph of a plaque with an embedded DISA coin, given to him for his support of the DISA mission from 14 May 2007 to 13 November 2014

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.  The applicant's record contains a DA Form 2-1 (Personnel Qualification Record – Part II), DD Forms 214 for the periods ending 18 December 1986 and 7 June 1991, a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 15 November 1988, and an NGB Form 337 (Oaths of Office), dated 11 April 1988.  These forms show:

	a.  He entered military service as a Reserve commissioned officer and was appointed to the rank of second lieutenant on 10 June 1983. 

	b.  He subsequently entered active duty on 16 September 1983 and he was promoted to first lieutenant (1LT) on 16 March 1985.  He was honorably released from active duty on 18 December 1986, by reason of reaching his expiration term of service, and was transferred to Headquarters and Headquarters Company, 301st Area Support Group, Fort Totten, NY.

	c.  He served in the USAR with the 301st Area Support Group, Fort Totten, NY, from 19 December 1986 to on or around 10 April 1988, when he was transferred to the New York Army National Guard (NYARNG).

	d.  He entered service in the NYARNG as a 1LT on 11 April 1988.  He was granted temporary federal recognition in the rank/grade of 1LT that same day.  These documents further indicate he served in the NYARNG from 11 April 1988 to 15 November 1988 (7 months and 5 days) and was honorably released from his assignment to the NYARNG and transferred to the U.S Army Reserve (USAR) Control Group (Reinforcement).
	e.  He was released from the USAR Control Group (Reinforcement) on 25 August 1990 and was assigned to the 142nd Transportation Detachment, a USAR troop program unit in Jamaica, NY.  

3.  His record contains a DD Form 214 that shows he entered active duty on 
27 August 1990.  He served in Southwest Asia in support of Operations Desert Shield and Desert Storm from 17 September 1990 to 12 May 1991.  He was honorably released from active duty and transferred to Headquarters, 77th Army Reserve Command (ARCOM), Fort Totten, NY.

4.  He was reassigned back to the 142nd Transportation Detachment in Jamaica, NY on 8 June 1991. 

5.  He entered active duty on 14 July 1996.

6.  His record does not contain a separation packet.  As such, the complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record does contain:

	a.  A message, issued by the Commander, Total Army Personnel Command (currently the U.S. Army Human Resources Command (HRC)), Alexandria, VA on 1 July 1997, which approved his resignation for the good of the service under the provisions of Army Regulation 600-8-24, chapter 3.  This message directed the issuance of orders effecting his discharge under honorable conditions with a general discharge certificate.  This message also specifically directed that he be issued the Separation Program Designator (SPD) code "DFS."

	b.  His DD Form 214 shows he was discharged under honorable conditions (general) on 12 August 1997, under the provisions Army Regulation 600-8-24, paragraph 3-13 or 3-15, by reason of resignation for the good of the service and given the SPD code of "DFS."  

7.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.

	a.  Paragraph 3-13 (Rules for processing resignation for the good of the Service in lieu of general court-martial) of this regulation states an officer may submit a resignation for the good of the Service in lieu of general court-martial (GCM) (cannot submit unqualified resignation) when court-martial changes have been preferred against the officer with a view toward trial by GCM and/or when the officer is under a suspended sentence of dismissal.  An officer separated under this paragraph normally receives a characterization of service of under other than honorable conditions. 

	b.  Paragraph 1-22a provides that an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.

	c.  Paragraph 1-22b provides that an officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

8.  Army Regulation 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 states that the SPD code "DFS" is the appropriate code to assign to an officer separated under the provisions of Army Regulation 600-8-24, paragraph 3-13, by reason of "in lieu of trial by court-martial."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his under other than honorable conditions character of service be upgraded to honorable.  He contends he resigned in lieu of being court-martialed, in effect, for charges related to conduct unbecoming an officer for gambling with his subordinates.  He contends that the active duty officer who preferred charges was too harsh and should have handled the situation using NJP or a letter of reprimand. 

2.  His sincerity in this matter is not in question.  However, his records do not contain any evidence pertaining to the court-martial charges, and he did not provided any documentation to show what charges were preferred.  

3.  His record only reveals that HRC approved his resignation for the good of the service in lieu of trial by court-martial, and directed he be separated under the provisions of Army Regulation 600-8-24, chapter 3, and issued the SPD code of "DFS" which further indicates he was to be separated under the provisions of paragraph 3-13.  However, other than this, and the applicant's own statements, there is no information of record pertaining the actual circumstances surrounding his discharge.

4.  Though the circumstances surrounding the court-martial charges are unclear, the evidence does indicate he resigned based upon charges or misconduct meriting a general court-martial.  His resignation under such circumstances would normally have resulted in a characterization of service of under other than honorable conditions.  The fact that he received a general discharge indicates that his chain of command already favorably considered his service and decided to issue his a characterization of service higher than that normally issued for this type of resignation.

5.  There is insufficient evidence to justify granting the requested relief at this time.  

6.  However, as an administrative item, the separation authority listed on his 
DD Form 214 for the period ending on 12 August 1997 indicates he was being discharged under the provisions of Army Regulation 600-8-24, paragraph 3-13 or 3-15.  This entry is incorrect because the separation authority specifically directed his separation under chapter 3-13 by directing he receive the SPD code "DFS."  This SPD code is used to indicate a separation in lieu of court-martial under the provisions of Army Regulation 600-8-24, paragraph 3-13.  Therefore the portion of the entry stating "or paragraph 3-15" should be deleted from his 
DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  

2.  As an administrative matter, his DD Form 214 should be corrected by deleting the entry "AR 600-8-24, PARA 3-13 OR 3-15" in item 25 (Separation Authority) of

his DD Form 214 for the period ending 12 August 1997 and replacing it with the entry "Army Regulation 600-8-24, paragraph 3-13."




      _____________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)                                         AR20150001062





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001062



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1