IN THE CASE OF:  	Mr.

      BOARD DATE:  	4 April 2014

      CASE NUMBER:  	AR20130009402
___________________________________________________________________________

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 and a change to the narrative reason for separation.  

2.  The applicant, through counsel, provides the following issues for the Board's consideration:

Propriety Issue 1:  The Army did not follow proper procedures for discharging the applicant.

Propriety Issue 2:  The Secretary of the Army or his designee should have determined whether to proceed with the disciplinary hearing or the medical board, once there was a finding of physical unfitness, pursuant to AR 600-8-24, 1-24(b).  No documents in the applicant’s record indicate that such a decision occurred; thus, the applicant should receive a permanent disability retirement.

Equity Issue 1:  The people with the most information about both incidents contemporaneously considered what the applicant’s punishment should be, and chose only to issue a General Officer Memoranda of Reprimand (GOMOR).

Equity Issue 2:  The applicant’s supervisors on his last assignment at Fort Bliss found him to be outstanding.

Equity Issue 3:  Assuming arguendo that the board of inquiry (BOI) was permitted to issue a disciplinary decision, there is nothing in the record that indicates that the BOI considered his medical condition.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			27 February 2011
d. Reason/Authority/SPD/RE Code:	Unacceptable Conduct, AR 600-8-24, paragraph
      4-2b, JNC, NA
e. Unit of assignment:			Training and Doctrine Command (TRADOC), Future						Force Integration Directorate, Fort Bliss, TX
f. Current Enlistment Date/Term:	12 September 2006, 3 years/ the document extending						his service until his discharge date is not in the file
g. Current Enlistment Service:	4 years, 5 months, 16 days
h. Total Service:			23 years, 5 months, 19 days/block12e on the 							applicant’s DD Form 214 total prior inactive service, is 					incorrect and should read 7 years, 6 months, 6 days.
i. Time Lost:				None
j. Previous Discharges:		USMCR (860214-860721)/NA									USMC (860722-920721/HD									USMCR (920722-930412)/NA									AFANG (930413-931102/NA									AD (931103-940218)/HD										AFANG (940219-941220)/NA									     ( Break in Service)										AFANG (960713-980711)/NA									AD (980712-990118)/HD										AFNG (990119-020802)/NA									USAF (020803-060911)/HD
k. Highest Grade Achieved:		O-3
l. Military Occupational Specialty:	25A, Signal, General
m. GT Score:				NA
n. Education:				BS Degree
o. Overseas Service:			Southwest Asia/Korea
p. Combat Service:			Saudi Arabia (900520-910519, prior service)
q. Decorations/Awards:		JSCM, ARCOM, AAM, NDSM-W/BS, SWASM-W/3 						BSS, GWOTSM, KDSM, ASR, KLM-SA, KLM-KU, 						ASUA-2, MCGC, MCMM, NMCCAR, NUC, NMUC, 						NSSDR-2, AFAM, AFOUA, ARFMSM, AFLSAR-5, 						AFTR-2, AFOSTR, AFNPMEGR-2, JMUA
r. Administrative Separation Board: 	Yes/Board of Inquiry (BOI)
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the US Marine Corps Reserve on 14 February 1986.  The applicant enlisted in the US Marine Corps on 22 July 1986, for a period of 6 years.  He was 18 years old and was discharged on 21 July 1992 with an honorable characterization of service.  He was transferred to the Marine Corps Reserve after completing his active duty service.  The applicant enlisted in the Air Force Air National Guard on 13 April 1993, the period of service is not in the file and 25 years old at the time.  He was ordered to active duty on 3 November 1993 and received an honorable discharge upon completion of his service and returned to his unit and was discharged.  He had a break in service.  He enlisted again in the Air Force Air National Guard on 13 July 1996 and was 27 years old at the time.  He was ordered to active duty on 12 July 1998, he received an honorable discharge upon completion of his service and returned to his unit and was discharged on 2 August 2002.  He was commissioned as an officer on 13 June 2002.  He commissioned in the US Air Force on 3 August 2002 for 4 years and was 34 years old at the time.  He was discharged on 11 September 2006 with an honorable characterization of service.  He enlisted in the Regular Army on 12 September 2006 for a period of three years; the document extending his service until his discharge date is not in the file.  His record does not show any combat service during the period of service under review, but he earned several awards including an ARCOM, and a AAM; he also earned awards from prior periods of service and he achieved the rank of CPT/O-3.  He was serving at Fort Bliss, TX when separation action was initiated.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 30 October 2009, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraphs 4-2b(5) and (8), AR 600-8-24, by reason of misconduct, moral or professional dereliction and conduct unbecoming an officer.  Specifically for the following offenses:

     a.  a series of substantiated derogatory activity resulting in a referred service school academic evaluation report for the period 17 October 2006 through 23 March 2007; two GOMORs dated 13 February 2007, and 21 April 2008 and a referred Officer Evaluation Report for the period 28 December 2007 through 14 April 2008 that was filed in his AMHRR.

     b.  conduct unbecoming an officer as indicated by the above-referenced items.

2.  The applicant was directed to show cause for retention in the Army.  He was advised that he could submit a sworn or unsworn statement, a rebuttal statement, or request for resignation in lieu of elimination.  The applicant’s chain of command recommended his case be referred to a show cause board.

3.  On 5 March 2010, the applicant was notified to appear before a board of officers and advised of his rights.  

4.  On 1 April 2010, the applicant appeared with counsel before a BOI (Show Cause Board). The Board found the applicant committed misconduct, moral or professional dereliction and conduct unbecoming an officer.  The Board recommended separation from the US Army with a general, under honorable conditions discharge.  

5.  On 10 June 2010, the BOI reconvened due to a procedural error when the BOI president with the SJA in a closed session during deliberations and incorporated the discussion into the record.  However, the BOI again substantiated each of the bases for the initiation of separation and recommended that the applicant be separated from the Army with a general discharge.

6.  On 8 July 2010, the Commander, DA, HQS, Fort Bliss, TX indicated he reviewed the BOl proceedings and each of the appeals; and based upon this review he supports the BOI’s findings.  However, if the applicant’s pending medical board recommends that he be medically retired from the Army, he recommend that his medical disability processing take precedence over the BOI’s recommendation and he be separated from the Army with a general, under honorable conditions discharge.

7.  On 14 October 2010, the DA Ad Hoc Board of Review for Eliminations recommended the applicant’s elimination action be accepted with issuance of a general, under honorable conditions discharge.

8.  On 3 February 2011, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Board of Review and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  Also the Physical Disability Board Proceedings were reviewed and found that the medical conditions were not a contributing factor to his misconduct and determined that he would not be medically discharged, but administratively for misconduct.

9.  The applicant was discharged from the Army on 27 February 2011, with a characterization of service of general, under honorable conditions, under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24, for unacceptable conduct.

10.  The applicant’s service record does not contain any evidence of unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains two administrative General Officer Memoranda of Reprimand (GOMOR), dated 9 April 2008 for conduct unbecoming an officer as the Rear Detachment Officer in Charge, engaged in inappropriate behavior with spouses of the 3/89th Cavalry Regiment Family Readiness Group (FRG), and 13 February 2007 for being apprehended for operating a motor vehicle while under the influence of alcohol.

2.  The applicant received five OERs covering the periods 31 March 2007 through 15 July 2010.  Of note, the OER covering the period 28 December 2007 through 14 April 2008, the applicant was rated as do not promote. 

3.  Two DA Forms 1059 (Service School Academic Evaluation Report), dated 23 March 2007 for achieving course standards in the Captains Career Course and the Battalion S-6 Officer Course.

4.  The record also contains Physical Evaluation Board (PEB) Proceedings, dated 8 December 2010 which indicated the applicant was physically unfit and recommended a combined rating of 30 percent with a permanent disability retirement.

5.  The BOI proceedings, dated 1April 2010 recommended the applicant be discharged from the service with a general, under honorable conditions discharge.

6.  A Military Police Report, dated 31 January 2007 indicated the applicant was under investigation for driving under the influence off post.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 with a supplemental statement (21 pages), application part 1 (102 pages), application part 2 (105 pages), application part 3 (115 pages), application part 4 (71 pages), application part 5 (71 pages); applications parts 1-5 consisted of DD Forms 214, commendations and character letters, medical retirement documentation, GOMORs, medical records, OER evaluations, officer records and enlisted records. 


POST-SERVICE ACTIVITY: 

The applicant did not submit any with his application.

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 and a change to the narrative reason for separation was carefully considered.  However, after examining the applicant’s record of service, his military records, the document and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

2.  The record confirms 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.

4.  Propriety Issue 1 is rejected:  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.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was improperly discharged.

5.  Propriety Issue 2 is rejected:  The Deputy Assistant Secretary (DASA) directed the applicant’s discharge with a characterization of service of general, under honorable conditions. Also the DASA reviewed the Physical Disability Board Proceedings and found that the medical conditions were not a contributing factor to his misconduct and determined that the applicant would not be medically discharged, but administratively separated for misconduct.

6.  Equity Issue 1 is rejected:  On 30 October 2009, the applicant was notified of being  identified by the Fiscal Year 2009 Major, Army, (Operations Support) promotion selection board to show cause for retention on active duty because of misconduct, moral or professional dereliction.

7.  Further, AR 600-8-24, paragraph 4-1 states, an officer is permitted to serve in the Army because of the special trust and confidence the President and the Nation have placed in the officer’s patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated

8.  Also, 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.

9.  Equity Issue 2 is rejected:  Paragraphs 3-20, AR 623-3, states in pertinent part that each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  

10.  Equity Issue 3 is rejected:  The Board President stated that the board would consider the form of the charges and make a recommendation to the disposition of the BOI and whether the Board would retain or discharge the applicant with an honorable, general, under honorable conditions or under other than honorable conditions discharge.  The separation approving authority would determine if the applicant was medically or administratively discharged.

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

12.  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:  4 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  yes [redacted]

Witnesses/Observers:  NA 

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)		AR20130009402



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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