IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 July 2013

      CASE NUMBER:  	AR20120022482
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests to upgrade his characterization of service from general, under honorable conditions to fully honorable, and to change the separation code.

2.  The applicant states, in effect, he believes his record to be unjust for the following reasons: disparate treatment, because of his race or national origin; he was charged with two specifications of sexual harassment, but only one female Soldier complained of sexual harassment; and he was punished for the same alleged misconduct in a form not commensurate with the alleged offenses committed.

	The counsel-authored statement provides that the general, under honorable conditions discharge with a separation code of “JNC” precludes the applicant from rejoining the Army or any other military service component, and that the appellant requests to evaluate his case and file, and upgrade his discharge to an honorable discharge and remove the “JNC” separation code based on his service record and achievements.  The counsel also requests the entire record of punitive actions against the applicant be expunged from his AMHRR based on facts presented in his statement.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	7 December 2012
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	27 June 2011
	d.	Reason/Authority/SPD:	Unacceptable Conduct, AR 600-8-24, JNC
	e.	Unit of assignment:	HHC, 70th Brigade Support Battalion, 210th Fires 
			Brigade, 2nd Infantry Division, Camp Casey, Korea
	f.	Current Entry Date/Term:	16 October 2004, indefinite
	g.	Current Term Net Active Service:	6 years, 8 months, 12 days
	h.	Total Service:	10 years, 3 months, 8 days
	i.	Time Lost:	None
	j.	Previous Discharges:	USAR (010320-041015) / NA
	k.	Highest Grade Achieved:	O-3
	l.	Military Occupational Specialty:	90A5S, Logistics
	m.	GT Score:	NA
	n.	Education:	Bachelor of Science Degree
	o.	Overseas Service:	Korea, SWA
	p.	Combat Service:	Afghanistan (080505-090804)
	q.	Decorations/Awards:	MSM; AAM-3; NDSM; ACM-CS; GWOTSM; KDSM; 
			ASR; OSR-2; NATO MDL
	r.	Administrative Separation Board: 	Yes
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	No
	u.	Prior Board Review:	No


SUMMARY OF SERVICE: 

The applicant was appointed as a Reserve Commissioned Officer for an indefinite period in the infantry branch on 11 July 2004, and reported for active duty on 16 October 2004, for a period of 4 years.  He was 22 years old at the time of his appointment with a Bachelor of Science degree.  He served in Afghanistan and Korea.  He earned an MSM and three AAMs.  He completed 6 years, 8 months, and 12 days of active duty service and a total service of 10 years, 3 months, 8 days of active and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 13 October 2010, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraphs 4-2b(5) and 4-2c(1), AR 600-8-24, by reason of misconduct, moral or professional dereliction, and derogatory information, respectively.  

2.  The applicant was directed to show cause for retention in the Army for the following acts of personal misconduct:

	a.	Sexually harassed 2LT M and PFC B, both Soldiers under his command (100817-100901).

	b.	The harassment consisted of inappropriate comments, unwelcomed visits to 1LT M’s quarters, and text messages of sexual nature to PFC B, in violations of Articles 92, 93, 133 and 134, UCMJ.  

	c.	Additionally, for receiving punishment under Article 15, UCMJ, for the aforementioned referenced infractions.  

3.  He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  

4.  On 28 February 2011, the applicant appeared with counsel before a Board of Inquiry (Show Cause Board).  The Board found the applicant committed an act of personal misconduct by sexually harassing 2LT M and PFC B, both Soldiers under his command.  The harassment consisted of inappropriate comments, unwelcomed visits to 2LT M’s quarters, and text messages of sexual nature to PFC B.  The misconduct resulted in an Article 15 punishment.  The Board recommended separation with a general, under honorable conditions discharge.  

5.  The DA Board of Review for Eliminations recommended the applicant’s elimination action be accepted with issuance of a general, under honorable conditions discharge.  

6.  On 26 May 2011, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the DA Board of Review for Eliminations and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.   

7.  The applicant was discharged from the Army on 27 June 2011, with a characterization of service of general, under honorable conditions.

8.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains seven Officer Evaluations Reports (OERs), covering period of 25 May 2005 through 1 July 2011.  The applicant was rated “Outstanding Performance, Must Promote” and “Best Qualified” in six OERs, and “Unsatisfactory Performance, Do Not Promote” and “Do Not Promote” on one OER for period covering 16 May 2010 through 13 October 2010.  

2.  An Article 15, dated 1 October 2010, for violating a lawful general regulation by sending inappropriate text message of sexual nature and creating an environment of perceived partiality and unfairness (100401-100901); sexually harassing PFC B, a person subject to his orders, by sending text messages of an inappropriate and sexual nature and propositioning a sexual relationship to PFC B; wrongfully making comments and sending text messages of sexual nature to PFC B; and fraternizing with an enlisted Soldier, PFC B.  The punishment consisted of forfeiture of $2,558 per month for two months, arrest in quarters for 30 days, and a written reprimand, (FG).  The Article 15 is presented with AR 15-6 investigation packet.

3.  Board of Inquiry Proceedings with findings and recommendations.

4.  An Article 15-6 investigation report of findings and recommendations, dated 11 September 2010.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an 11-page counsel-authored statement that describes the background, facts, basis for appeal, and the nature of the appeal.  The statement includes a list of exhibits attached to the applicant’s petition.  (Note due to its voluminous nature, and the redundancy of listing each exhibits, they will not be listed again at this part of the case report.) 

POST-SERVICE ACTIVITY: 

The applicant provided none. 

REGULATORY AUTHORITY:

1. Army Regulation (AR) 600-8-24, Officer Transfers and Discharges, sets forth the basic authority for the separation of commissioned and warrant officers.  Chapter 4 outlines the policy and procedure for the elimination of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.

2.  AR 600-8-24, 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.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.

3.  A general under honorable conditions characterization of service will normally be issued to an officer when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for relief from active duty under circumstances involving misconduct which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate.

4.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  An officer will normally receive an under other than honorable conditions when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the separation code was carefully considered.  However, after examining the applicant’s record of service, the documents, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the separation code of his discharge.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by Army officers.  It brought discredit on the Army and was prejudicial to good order and discipline.  By his misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  

3.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the unacceptable conduct or poor duty performance.  Further, the applicant’s record contains no evidence of arbitrary or capricious actions by the command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends the discharge was unjust because:

	a.	he was the victim of disparate treatment, because he belonged to a minority group in comparison to other cases against non-minority officers; 

	b.	he was burdened with inadequate legal assistance; 

	c.	he was charged with two counts of violating a lawful general regulation for sexual harassment when one count was based on a filed complaint and the other accuser never filed a complaint.  

However, in view of the above issues, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  The applicant has produced insufficient evidence to support the contention that he may have experienced unjust discrimination.  In fact, the applicant’s Article 15 that resulted from the findings of an Article 15-6 investigation justifies his discharge for misconduct.  The applicant’s and his counsel-authored statements do not overcome the government’s presumption of regularity.  Moreover, the applicant’s contention of disparate treatment in comparison with other cases, i.e., the method in which another Soldier’s case was handled, is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 

5.  The applicant contends that a change to the separation code would allow for his reentry into military service.  However, Army Regulation 635-5-1 (Separation Program Designator (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 identifies the separation code of "JNC" as the appropriate code to assign officer personnel who are discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct.  The regulation further stipulates that no deviation is authorized.

6.  The applicant contends that he had good service which included several achievements.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge

7.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.

8.  Therefore, the reason for discharge and characterization of service being both proper and equitable, recommend the Board deny relief.






SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:	Personal Appearance	Date: 15 July 2013   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: Philip M. Reilly, Esq., Urbanización Punta Las Marías, 21 Calle Forte, San Juan, Puerto Rico 00913-4711

Witnesses/Observers: None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional document in the form of a letter of reference.

2.  The applicant presented no additional contentions

In addition to the evidence in the record, the Board carefully considered the additional document and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA









Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20120022482



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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