IN THE CASE OF:  	

      BOARD DATE:  	25 September 2013

      CASE NUMBER:  	AR20130000581
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, 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 that his under other than honorable conditions discharge be upgraded to honorable and the reason for the discharged be changed.

2.  The applicant states, in effect, that his characterization of service is inequitable because it was based on an isolated incident in 25 years of service and that he had an impeccable performance and character record and no adverse actions.  He contends he was 18 days from his retirement date and was called back to active duty.  His performance, deployments, awards, OERs and character letters represent the type of officer he is.  He clearly understands the gravity of the mistakes he made, but does not believe it warrants the discharge he received.  The investigation against him started in 2008 and ended in 2012; during this time frame he was allowed to serve in high level positions and to attend several secret briefings.  He was only give the opportunity to defend himself after the FBI Special Agents could not find any supporting documents or evidence to support their accusation that he was defrauding the Government, money laundering, and committing wire fraud.  He states it never was his intent, goal or purpose to defraud, deceive or bring discredit to the Officer Corps, US Army or Government.  He states that after leaving Afghanistan and preparing to retire after four non-selects to LTC, he was selected for promotion he started his own company.  He started his own business because he wanted to be an entrepreneur.  He also contends he made two grave mistakes; doing business with Coco International; and not fighting the charges against him, but requesting a chapter 4.  Both of his decisions have had a devastating negative impact on his Army career, family, job opportunities and his life.  He believes, although he cannot get his retirement back, he's requesting his characterization of service be upgraded to reflect the years of honorable service he gave to the US Army and the United States of America.  Although he had to take off the uniform and has been stripped of his 25 years of military service, the esprit de corps and Army green still flows through his body.  He still enjoys mentoring junior officers and sharing his experiences as a former member of the Army Officer Corps.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			20 December 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				27 April 2012				
d. Reason/Authority/SPD/RE Code:		In Lieu of Trial by Court-Martial, AR 600-8-24 								paragraph 3-13, DFS, NA
e. Unit of assignment:				HQ, Main CMD PO, Fort Sam Houston, 
f. Current Entry Date/Term:			24 June 1986, NIF
g. Current Term Net Active Service:		25 years, 10 months, 4 days	
h. Total Service:				29 years, 4 months, 18 days (This information 								is based on the DD Form 214 under review; 								also the DD Form 214 indicates the applicant 								had 3 years, 6 months, and 14 days of prior 								service; however the record only supports 								2 years, 3 months, and 18 days.) 
i. Time Lost:					None
j. Previous Discharges:			USAR/Cadet-840306-860623/NA
k. Highest Grade Achieved:			O-5
l. Military Occupational Specialty:		90A, Logistics; 91A, Maint/Munit Materiel
m. GT Score:					NA
n. Education:					College Graduate
o. Overseas Service:				Southwest Asia, Korea, Colombia, Germany
p. Combat Service:				Afghanistan (051202-061201)
q. Decorations/Awards:			BSM, MSM-3, ARCOM-3, AAM, ACM-w/2CS 								NDSM-2, GWOTSM, KDSM, AFSM, ASR 								OSR-6
r. Administrative Separation Board: 		No  
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

The applicant's record indicates that after serving 1 year, 2 months, and 26 days of military service, he enlisted in the US Army Reserve as a cadet for 6 years.  The applicant was commissioned as a second lieutenant on 15 June 1986.  On 26 June 1986, he was ordered to active duty.  He was 25 years old at the time and a college graduate.  His officer record brief (ORB) indicates he was served in Colombia, Afghanistan, Korea, and Germany.  He earned a BSM, three MSM's, three ARCOM's, an AAM and completed 29 years, 4 months, and 18 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet, which shows that on       15 December 2011, the applicant was charged with the following offenses:

      a.  one specification of larceny, in violation of Article 121, UCMJ 
      
      b.  eight specifications of conduct unbecoming an officer and gentleman, in violation of 		     Article 133, UCMJ
      
      c.  two specifications of receiving an gratuity, in violation of 18 USC 201 (c) (2) and 	  	    Article 134, UCMJ
      
      d.  four specification of receiving compensation for representational services, in violation 	     of 18 USC 203 (a)(1)(b) and Article 134, UCMJ
      
2.  On 7 March 2012, the applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24, for the good of the Service in lieu of trial by a general court-martial or a board of officers.   The applicant indicated he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The chain of command recommended approval of the resignation for the good of the Service with issuance of an under other than honorable conditions discharge.

3.  On 8 March 2012, the Commander, Headquarters, United States Army South, Fort Sam Houston, TX, recommended approval of the resignation with issuance of an under other than honorable conditions discharge. 

4.  On 11 April 2012, the Deputy Assistant Secretary (DASA) (Army Review Boards) having reviewed the applicant's request for resignation for the good of the Service in lieu of general court-martial, accepted his resignation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  It was also directed that the applicant's entire court-martial proceedings, both findings and sentence, if any, be vacated.

5.  The applicant was discharged from the Army on 27 April 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 3, paragraph 3-13, AR 600-8-24, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of DFS. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A copy of the DASA's memorandum, dated 11 April 2012, directing the applicant's discharge.

2.  Twenty-two successful OERs covering the period of 9 November 1990 to 31 January 2011.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, character letters, OER's for ten years, ORB, dated 18 January 2012, copy of BSM narrative, approved retirement, dated 8 February 2011, VA benefits/determination, BMW vehicle contract, C7 Company filing documents, diesel analyzer, documents relating to Coco, GCM charges, applicant's response to GCM, and two copies of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None provided by the applicant.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-100 sets forth the basic authority for the separation of commissioned and warrant officers from the active Army.  Chapter 3, Section XV establishes policy and procedures for involuntary relief from active duty.  Paragraph 3-58(g) provides that an officer who is found guilty, or action is taken tantamount to a finding of guilty, in a Federal or State court may be immediately released from active duty by the Secretary of the Army, when the offense is punishable under the UCMJ with confinement of 1 year or more, or when the offense involves moral turpitude, regardless of the sentence received or the maximum punishment under any code.  

2.  Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers.  Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial.

3.  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 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.

2.  The record indicates the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  The applicant voluntarily requested resignation, for the good of the service, in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24.  The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service.  The record confirms that by the misconduct, the applicant diminished the overall quality of his service below that meriting an honorable or a general, under honorable conditions discharge.

3.  The applicant contends that he had an impeccable performance and character to include receiving several decorations and numerous performance ratings before he resigned.
He believes his service merits an honorable discharge.  However, the applicant’s service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the incidents of unacceptable behavior as reflected in the discharge documents.

4.  The applicant contends that his discharge was inequitable because it was based on an isolated incident in 25 years of service.  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 as shown by the incidents of misconduct. 

5.  Furthermore, although an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of a commissioned officer in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  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.  

7.  The records show the proper discharge and separation authority procedures were followed in this case. 

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



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review   Date: 25 September 2013         Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Board Vote:
Character Change: 1 	No Change:  4
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:		No Change
Change RE Code to:			No Change
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          


ADRB Case Report and Directive (cont)		AR20130000581



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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