IN THE CASE OF:  	Mr. 

      BOARD DATE:  	22 April 2013

      CASE NUMBER:  	AR20130003517
___________________________________________________________________________

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 under other than honorable conditions to fully honorable; change the line of duty determination to “in line of duty,” and his benefits be adjust accordingly to reflect the change.

2.  The counsel on behalf of the applicant states, in effect, that the basis of the separation is unjust, because of use of impartial investigation methods (command’s blatant intent to coerce the applicant to change a duly sworn statement); lack of evidence in the separation board’s findings and its consistencies with the evidence; prior years of service of duty was with loyalty, honor, and being ethical during all job performance; and retaliation from having filed a complaint against a sergeant major due to harassment and racial slur.  The applicant’s request is accompanied by a 12-page counsel-authored petition that details the aforementioned issues, and specific conclusions that the applicant should be granted his request for relief so that his record and post-separation benefits properly reflect his years of service and dedication to the Army National Guard.  He has suffered both insult and injury.  He was not only separated without conclusive proof of any wrongdoing, he was also denied his entitlements because of an erroneous line-of-duty determination.  He is not trying to game the system, but wants only that which his service has earned him.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	26 February 2013
	b.	Discharge Received:	Under Other than Honorable Conditions
	c.	Date of Discharge:	19 August 2009
	d.	Reason/Authority/SPD/RE Code:	Misconduct / NGR 600-200, Paragraph 6-35(1), AR 
			630-200, NGR 600-5 / JKN / RE-4
	e.	Unit of assignment:	Mississippi Army National Guard Recruiting and 
			Retention Bn, Jackson, MS
	f.	Current Enlistment Date/Term:	1 September 2006/OAD / 3 years
	g.	Current Enlistment Service:	2 years, 11 months, 19 days
	h.	Total Service:	23 years, 3 months, 7 days
	i.	Time Lost:	None
	j.	Previous Discharges:	ARNG (860513-860528) / NA
			IADT    (860529-860731) / NA
			ARNG (860801-870607) / NA
			ADT    (870608-870806) / HD
			ARNG (870807-901128) / NA
			AD       (901129-910613) / HD
			ARNG (0910614-020717) / NA
			AD       (020718-030415) / HD
			ARNG (030416-040725) / NA
			AD       (040726-060331) / HD
			ARNG (060401-060831) / NA
	k.	Highest Grade Achieved:	E-7
	l.	Military Occupational Specialty:	09B (Recruiting and Retention NCO)
	m.	GT Score:	NIF
	n.	Education:	15 Years
	o.	Overseas Service:	Germany
	p.	Combat Service:	Bosnia (020818-030315)
	q.	Decorations/Awards:	ARCOM-2; AAM-5; ARCAM-4; NDSM-2; AFEM;  
			GWOTSM; AFRM-W/"M" DEV; NPDR-3; ASR; 
			OSR; ARCOTR; NATO MDL; MLM; MME
	r.	Administrative Separation Board: 	Yes
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	Yes (13 February 2003)

SUMMARY OF SERVICE:		

The applicant enlisted in the Army National Guard on 13 May 1986 for a period of 8 years, and has since completed 23 years, 3 months, and 7 days of service.  He was 18 years old at the time of entry and current records show he completed three years of college.  He served in Germany and Bosnia.  He earned two ARCOMs, five AAMs, and four ARCAM awards.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 22 May 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, paragraph 12-1c, AR 135-178, by reason of misconduct for the following offenses:

	a.  Based on crime lab evidence, he arranged the use of participants (ringers) to habitually take the ASVAB test for potential or unqualified applicants into the Mississippi Army National Guard (MSARNG); therefore, defrauding the Government and the taxpayer of potentially hundreds of thousands of dollars given the costs of recruiting, training, and compensation in the form of bonuses, pay, and benefits.

	b.  He fraudulently enlisted numerous applicants into the MSARNG that under fair and lawful practices, would not have been qualified to join.

	c.  He gained financially through the misuse of federal funds conspiring with said ringers to profit deceitfully through the use of Guard Recruiting Assistance Program (GRAP) funding.

	d.  He violated basic codes of military professionalism and ethical concoct; setting an example as an NCO to the numerous recruits and potential recruits that he came into contact with that the MSARNG is a corrupt organization, the rules are not to be followed, and turning service to country into a primarily money-making affair for the individuals he involved in his scheme.

	e. Through these illegal practices, he undermined the authority, credibility, and honor of the leadership.  Through his actions, unqualified individuals are likely to be given tremendous responsibilities for which they are not prepared.  The consequences are potentially devastating to the lives of others and to the lives of the Soldiers.

	f.  The above-stated misconduct, is in violation of the Mississippi Code of Military Justice, the United States Code and applicable Army regulations.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 

3.  On 18 June 2009, the applicant consulted with legal counsel; however, there is no record reflecting his complete election of rights regarding consideration of his case by an administrative separation board, and whether he submitted a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  There is no record of the applicant being notified to appear before an administrative separation board and the advisement of his rights; however, the separation proceedings reflect that he was notified on 14 July 2009.  

5.  On 7 August 2009, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

6.  Subsequently, the separation authority approved the recommendation of the administrative separation board for the applicant to be discharged with a characterization of service of under other than honorable conditions.

7.  The applicant was discharged from the Army on 19 August 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 6, paragraph 6-35(1), NGR 600-20/AR 635-200/NGR 600-5, for misconduct, a Separation Program Designator code (SPD) of JKN and an RE code of 4.  He was reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.

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.  Limited separation file consisting of the separation Board proceedings.

2.  Nine NCOERs covering the period from November 1999 through 30 June 2009 (at the rank of E-7).  The applicant received ratings of “Among the Best” and 1/1 from the senior rater on five reports; “Fully Capable” and 1/1 on one report; “Fully Capable” and 2/2 on two reports; and the most report evaluated him as “Marginal” and 4/4.


EVIDENCE SUBMITTED BY THE APPLICANT:

1. Through counsel, the applicant provided 19 exhibits, consisting of:  Exhibit 1 - Summary of Separation Board Proceedings, dated 7 August 2009; Exhibit 2 – Separation and Service Documents; Exhibit 3 – mobilization orders, dated 11 August 2006; Exhibit 4 – Guard Recruiting Assistant Program (GRAP) overview; Exhibits 5 and 6 – Counseling Statements rendered by the applicant; Exhibit 7 – Statement by SFC P, dated 6 January 2010; Exhibit 8 – Statement by Mr. S; Exhibits 9 and 10 – Unsworn Statements by SSG K; Exhibit 11 – applicant’s memorandum for ABCMR, undated; Exhibit 12 – counseling statement, dated 25 March 2009; Exhibit 13 – medical documents; Exhibit 14 – LOD documents; Exhibit 15 – medical and leave request documents; Exhibit 16 – EEO Complaint and supporting statement; Exhibit 17 – statement by Mr. B, dated 6 January 2010; Exhibit 18 – applicant’s memorandum, dated 4 February 2011; Exhibit 19 – police report. 

2.  Copies of ARBA CMD correspondence re: AR20120005526, AR20100015376, AR20100015906.

3.  JA legal review memorandum, dated 14 August 2009 with DA Form 1574, separation board proceedings with findings and recommendation, and the appointing and separation authority decision; JA letter to the applicant’s counsel, dated 8 May 2012; applicant’s initial appeal, dated 2 August 2009.

4.  DD Form 214 for service under current review.

POST-SERVICE ACTIVITY: 

The applicant provided none

REGULATORY AUTHORITY:

1. National Guard Regulation (NGR) 600-200 and Army Regulation 135-178, govern procedures for the administrative separation of enlisted personnel of the Army National Guard and the Army Reserve.  

2.  Chapter 6 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard and Chapter 12, AR 135-178 for members of the Army Reserve by reason of misconduct.  Paragraph 6-35i(1), the specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.




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, his military records, 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 available 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 military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  

3.  The applicant contends the discharge was unjust because he did not violate ARNG regulations to benefit himself, and that the depression and anxiety issues he encountered in the line of duty was not caused by any misconduct on his part.  However, 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.  

4.  The applicant provided insufficient evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

5.  The applicant contends that medical issues resulted from the issues that led to his discharge from the Army and requested his line of duty (LOD) be changed to in line of duty and his benefits be adjusted to reflect the change. The applicant’s request for a change to the LOD does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.

6.  Furthermore, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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:  Personal Appearance     Date: 22 April 2013     Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  Mr. David P. Sheldon, Esq., Law Offices of David P. Sheldon, PLLC, Barracks Row, 512 8th Street S.E., Washington DC 20003

Witnesses/Observers: Yes - spouse 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  AR 15-6, Investigative guide from office of SJA, 4th ID, dtd 1 Mar 2010
	b.  Support Document outline – 1 page
	c.  Resume – 1 page

2.  The applicant presented the additional contention:

	a.  None were submitted.

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

Board Vote:
Character Change:  2	No Change:  3
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:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A



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)		AR20130003517



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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