IN THE CASE OF:	Mr. 

      BOARD DATE:	14 May 2014

      CASE NUMBER:	AR20130014021
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of service under review and considering the examiner’s 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 the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge. 

2.  The applicant states, in effect, the circumstances surrounding his discharge and the characterization of service are based on biased information.  He has 20 years of military service, but was not afforded a fair proceeding.  He was never given the right of due process, and was discharged because of personality differences and not based on the evidence he provided.  The intent of the proceeding was to prevent him from retiring and receiving his military benefits.  He is unable to retire because of the characterization of service received.  The applicant has included a self-authored statement.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	29 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	14 June 2012
	d.	Reason/Authority/SPD/RE Code:	Unacceptable Conduct, AR 600-8-24, Paragraph 4-2b 
			JNC, NA
	e.	Unit of assignment:	HHC, 3rd BCT, 1st ID, Fort Knox, KY
	f.	Current Enlistment Date/Term:	30 April 2003, indefinite
	g.	Current Enlistment Service:	9 years, 1 month, 15 days
	h.	Total Service:	20 years, 2 months, 13 days
	i.	Time Lost:	None
	j.	Previous Discharges:	(previous active service of 3 years, 3 months, 24 days 
			and inactive service of 1 year, 8 months, 25 days) NIF
			RA      (970421-990723) / NA 
			USAR (990724-030429) / NA
	k.	Highest Grade Achieved:	O-3
	l.	Military Occupational Specialty:	14A, Air Defense Artillery
	m.	GT Score:	NA
	n.	Education:	Bachelor of Arts Degree
	o.	Overseas Service:	Korea, SWA
	p.	Combat Service:	Afghanistan (101223-111224), Iraq (050910-060911)
	q.	Decorations/Awards:	ARCOM-2; AAM-5; USNAM; AGCM-2;NDSM-2 
			ACM-2CS; ICM-CS; GWOTEM; GWOTSM; KDSM 
			ASR; OSR-3; CAB; MUC; NATO MDL
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:  

The applicant’s prior service is not available; however, the record documents that he entered active duty on 21 April 1997, and was discharged on 23 July 1999, to commence with his ROTC scholarship.  After successfully completing the ROTC cadet program, he was appointed as a reserve officer and commissioned as a second lieutenant on 7 March 2003.  He was 31 years old at the time he entered active duty for the period under current review and had a Bachelor of Arts degree.  He served in Iraq and Afghanistan.  He earned two ARCOMs, 5 AAMs; and a USNAM awards.  He completed a total of 20 years, 2 months, and 13 days of active and reserve service (16 years, 5 months, and 7 days of active service).  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 27 October 2011, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2, AR 600-8-24, by reason of acts of personal misconduct.  

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

	a.	fraternizing with an enlisted Soldier, SSG G (110101-110131);
	b.	maltreating an enlisted Soldier, PFC C, on numerous occasions (110220, 110222; 110301-110331 x 2, and 110307-110407 x 2);
	c.	engaging in business relationship with enlisted Soldiers (081201-090801);
	d.	uttering to AAFES, certain check with insufficient funds on numerous occasions (090619, 090705, 090711, 090712, 090714, 090719, and 090722); and
	e.	conduct unbecoming of an officer resulting in two GO Article 15 actions (2011 and 2009).

He was advised that he could submit a voluntary resignation in lieu of elimination, submit a rebuttal, apply for retirement in lieu of elimination, and request an appearance before a Board of Inquiry.  

3.  On 24 November, he requested appearance before a Board of Inquiry.

4.  On 8 December 11, 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:

	a.	maltreating an enlisted Soldier, PFC C, on numerous occasions (110220, 110222; 110301-110331 x 2, and 110307-110407 x 2);
	b.	engaging in business relationship with enlisted Soldiers (081201-090801); and
	c.	uttering to AAFES, certain check with insufficient funds on numerous occasions (090619, 090705, 090711, 090712, 090714, 090717, and 090722).

The Board recommended separation with a general, under honorable conditions discharge.  

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

6.  On 30 May 2012, the Deputy Assistant Secretary (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 14 June 2012, 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.  ADHOC case file with DASA decision memorandum, dated 30 May 2012.

2.  Article 15, dated 12 November 2009, for violating a general regulation on divers occasions by wrongfully engaging in business relationships with enlisted Soldiers (081201-090801) and wrongfully and unlawfully uttering checks with insufficient funds on seven separate occasions (090619, 090705, 090711, 090712, 090714, 090717, and 090722).  The punishment consisted of forfeiture of $2,598 (suspended), 30 days of restriction, and written letter of reprimand, (GO).

3.  Eight OERs, rendered during the period under current review are as follows:

	a.	Referred Annual OER (101121-111120), the rater assessed him as Unsatisfactory Performance, Do not Promote and the senior rater as Do Not Promote/Below Center of Mass Retain.
	b.	Annual OER (091121-101120), the rater assessed him as Outstanding, Must Promote and the senior rater as Best Qualified.
	c.	Referred Change of Rater OER (090519-091120), the rater assessed him as Unsatisfactory Performance, Do not Promote and the senior rater as Do Not Promote.
	d.	Annual OER (080519-090518), the rater assessed him as Outstanding, Must Promote and the senior rater as Best Qualified.
	e.	Annual OER (070520-080519), the rater assessed him as Outstanding, Must Promote and the senior rater as Best Qualified.
	f.	Change of Rater OER (060101-060930), the rater assessed him as Satisfactory Performance, Promote and the senior rater as Best Qualified.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement with his application; DAIG letter, dated 23 March 2012, with two electronic actions, each consisting of 3 pages; an Annual OER for 21 November 2009 through 20 November 2010; counseling statement, dated 12 August 2011; e-mail correspondence, dated 4 July 2011;rights warning waiver certificate, dated 28 July 2011; memorandum, dated 30 July 2011, subject: AR 15-6 Investigation – allegations of inappropriate conduct towards female enlisted Soldier – [the applicant]; ten character reference statements; ORB, dated 27 August 2011; two statements referencing room arrangements, dated 20 August 2011; and a VA decision letter, dated 3 September 2013, as additional evidence. 

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.

ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, and the documents 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 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 his discharge was unjust because it was based on biased information and not on the evidence he provided, including personality differences and not being afforded a fair proceeding by denying him the right to due process.  He further contends the intent of the discharge was to prevent him from retiring and receiving his military benefits.  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 the issues.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  Furthermore, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

5.  The applicant contends the narrative reason for the discharge should be changed.  However, the applicant was separated under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "JNC."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

6.  The character of the applicant’s discharge is commensurate with his overall service record.  The records show the proper discharge and separation authority procedures were followed in this case.  

7.  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:  14 May 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

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)		AR20130014021

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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