IN THE CASE OF:  	

      BOARD DATE:  	2 August 2013

      CASE NUMBER:  	AR20130003785
___________________________________________________________________________

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 his general, under honorable conditions discharge, be upgraded to honorable.

2.  The applicant states, in effect, that he was erroneously suspected for driving under the influence (DUI).  He makes the following contentions:

     a.	The patrolman, believing he smelled alcohol on his person, placed him under arrest on the spot without the benefit of offering a field sobriety test or breathalyzer test.

     b.	He immediately declared his innocence, but was handcuffed and taken into custody where he remained for several hours until release.  He alerted his chain of command upon his release via the staff duty officer.

     c.	Despite the absence of evidentiary findings, he was immediately flagged and subsequently charged.  He received a General Officer Memorandum of Reprimand (GOMOR) for conduct unbecoming an officer for permanent disposition to his official record, and was informed he would be recommended for discharge.

     d.	On 18 November 2011, he defended his case in court, and was notified that he would only be charged with speeding due to the lack of evidence and probable cause regarding the alleged DUI allegation.  He received a letter of exoneration from the State of South Carolina absolving him of all charges related to the alleged DUI and full reinstatement of his driving privileges.  The records were expunged and destroyed. 

     e.	Despite presenting this relevant and critical information to his chain of command and the Fort Jackson Commanding General, he was informed that his GOMOR would remain in force and the recommendation for discharge would proceed.

     f.	He ensured that his name and the great name of the Army that he proudly represented were cleared of any wrongdoing by the State of SC.  In his short time as an officer, he was never punished and/or reprimanded for his performance, morality or ethics and conducted himself in a manner consistent with being both an officer and a gentleman.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			19 February 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				1 March 2012
d. Reason/Authority/SPD/RE Code:		AR 600-8-24, Para 4-2b, JNC, NA
e. Unit of assignment:				Co A, 1st Bn, 61st ID, 165th IN BDE								Fort Jackson, SC
f. Current Term Entry Date/Term:		9 May 2009, 6 years
g. Current Term Net Active Service:		2 years, 9 months, 23 days
h. Total Service:				2 years, 9 months, 23 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			1LT
l. Military Occupational Specialty:		AG, 42B/Human Resources Officer
m. GT Score:					NA
n. Education:					College Degree
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AAM, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				None
SUMMARY OF SERVICE:		
	
The applicant was appointed as a 2LT on 3 May 2009; he entered active duty on 9 May 2009.  He was 23 years old at the time of entry.  He earned the AAM, NDSM, GWOTSM, and ASR.  He completed 2 years, 9 months, and 23 days of active duty service.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 10 November 2011, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2(b)(5) and 4-2(b)(8), AR 600-8-24, by reason of misconduct and moral dereliction.  The battalion and brigade commanders recommended the applicant’s separation from the Army with a general, under honorable conditions characterization of service.  

2.  The applicant was directed to show cause for retention in the Army after being arrested for DUI.  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.  

3.  On 15 December 2011, the applicant submitted matters on his behalf and requested his retention in the Army.  The CG, USA Training Center and Fort Jackson, SC reviewed the applicant’s rebuttal matters and recommended his discharge from the Army with a characterization of service of general, under honorable conditions.

4.  The Board of Inquiry’s documentation was not contained in the official record; however, on 27 January 2012, HRC forwarded the applicant's elimination case to the Deputy Assistant Secretary (DASA-Review Boards) for action.  HRC indicated the Show Cause Board recommended the appellant be separated with a general, under honorable conditions discharge.  

5.  The DA Ad Hoc Review Board reviewed the applicant’s elimination action and recommended its acceptance with issuance of a general, under honorable conditions discharge.  

6.  On 10 February 2012, the DASA (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board 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 1 March 2012, under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct, 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.  Counseling statement, dated 26 September 2011, for DUI.  
      
2.  GOMOR, dated 30 September 2011, for DUI.  

3.  Service School Academic Evaluation Report, dated 3 September 2009, showing completion of the AG Basic Officer Leaders Course (BOLC).  

4.  Officer Evaluation Reports (OERs) covering the period 25 September 2009 through 18 May 2011, depicting solid performances as the company executive officer (XO).

5.  OER covering the period 19 May 2011 through 1 February 2012, shows he was relieved for cause as the company executive officer.

     a.	The rater assessed him as "Unsatisfactory Performance, Do Not Promote," and noted that his performance was marginal; he began to report late for duty and missed several key training events.  The rater directed the relief for cause (RFC) based on a pattern of serious misconduct.  Further, the rater stated that after his DUI arrest, he failed to immediately notify the chain of command and lost his integrity when questioned about the incident by, at best, misrepresenting the circumstances of his arrest, or at worse, lied to his entire chain of command up through the Commanding General during the office call where he appealed the decision to terminate from service.

     b.	The senior rater (SR) indicated that he had no potential for further service and did not deserve to lead Soldiers.  The SR indicated the Commanding General directed his elimination for misconduct and moral professional dereliction.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; a DD Form 214; Officer Record Brief (ORB); copies of OERs and AER; and, a copy of Lexington County DUI Court record.

POST-SERVICE ACTIVITY: 

None listed.

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.

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 issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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 contends he was only charged with speeding due to the lack of evidence and probable cause regarding the alleged DUI allegation; he was exonerated from the State of South Carolina absolving him of all charges related to the alleged DUI; and his driving privileges were reinstated in full.  However, despite presenting this relevant and critical information to his chain of command and the Fort Jackson Commanding General, the GOMOR remained in force and his discharge was processed.

     a.	The evidence the applicant presented does not explain the reasons his charge was nol prossed.  Usually in a charge that has been nol prossed or dismissed, it is because a defendant successfully completed a Pre-Trial Intervention or Diversion Program or an Alcohol Education Program.  Other times a defendant may be found not guilty provided the dismissal was not part of a plea arrangement under which the defendant pled guilty and was sentenced on other charges.  In the applicant's case, the reasons the DUI charge was nol prossed are unknown.

     b.	Notwithstanding the above, the GOMOR imposing authority was not bound by any court action.  The imposing-authority may rely upon any relevant evidence when making a decision to issue an administrative GOMOR.  The imposing authority reviewed and considered the applicant's evidence and determined the evidence sufficiently persuasive and believed the applicant's behavior merited the issuance of a GOMOR.  

     c.	The police report indicates the applicant was clocked at 108 MPH in a 55 MPH zone; he smelled of alcohol; had glassy and bloodshot eyes; he refused to comply with the arresting officer's request to hang up his phone and get out of the car; and, once transported to the county jail, refused a breath test.  Despite the court's dismissal of his DUI charge, this does not mean the applicant was not under the influence of alcohol; whether it was a dismissal on a technicality, a plea bargain, or a diversion program, it does not mean the applicant was not DUI.  Inasmuch as he refused the breath test, he does not have proof he was not DUI.  Further, Army Regulation 190-5, Motor Vehicle Traffic Supervision, specifies that Army Commanders will take appropriate action against intoxicated drivers.  

     d.	Given the foregoing, 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.  The applicant, by violating the Army's drinking and driving policies, compromised the trust and confidence placed in an officer.  As an officer, the applicant had the duty to support and abide by the Army's drinking and driving policies.  

     e.	In addition, the applicant's record shows a pattern of misconduct involving incidents other than the DUI.  The Commanding General directed his elimination for his pattern of misconduct and moral professional dereliction.

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

5.  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:   Records Review	Date: 2 August 2013          	Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  			None

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:  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 Conditions
ADRB Case Report and Directive (cont)		AR20130003785

Page 2 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1