IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 April 2014

      CASE NUMBER:  	AR20130014687
___________________________________________________________________________

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 an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, the civilian charges against him were dismissed without trial and the arrest was expunged from his record.  He contends the decision for him to discontinue in the Army was partially based on those charges.  He states he continues to mentor young adults of the positive attributes of serving this great Nation.  He is not requesting an upgrade of his characterization to honorable simply due to the charges being dropped, but to expose the fact the military has brought out the importance of putting aside personal circumstances to help others.  He states since his discharge, he continues to represent the military positively.  He is now employed as a supervisor with Xerox-Texas Medical Health Partnership, an organization that manages medicare/medicaid operations for the State of Texas and he organized a fundraiser effort for the victims of the town of West, Texas.  He contends the misconduct was a single incident but he has a legacy of behavior that continued to foster a positive relationship with his sons and have become a foundation for advocating service before self.  He states the documents he has submitted with his application reflect a character of honor that is thoughtful and inspires hope in others in and out of service.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 August 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				19 October 2012
d. Reason/Authority/SPD/RE Code:		Unacceptable Conduct, AR 600-8-24, 
Paragraph 4-2b, JNC, NA
e. Unit of assignment:				5-82nd Field Artillery Regiment, Fort Hood, TX
f. Current Enlistment Date/Term:		17 July 2010/NIF
g. Current Enlistment Service:		2 years, 3 months, 3 days
h. Total Service:				14 years, 11 months, 9 days
i. Time Lost:					None
j. Previous Discharges:			USAF, (970715-100716), HD
k. Highest Grade Achieved:			O-1E
l. Military Branch/Specialty:			67A, Health Services; 70B, Health Services 
Admin
m. GT Score:					NA
n. Education:					Master’s Degree
o. Overseas Service:				SWA
p. Combat Service:				Iraq, (10102-NIF)
q. Decorations/Awards:			AFCM-2, AFAM, MUC, AFOUA, AFGCM, 
NDSM, GWOTEM, GWOTSM, ICM-CS, AFLSR, AFOLT, AFESR-GR, AFTNG, AFMER
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Air Force on 12 November 1997 and served 12 years, 8 months, and 5 days.  He was 24 years old at the time of entry and achieved the rank of TSgt/E-6.  He was discharged honorably on 16 July 2010.  On 17 July 2010, the applicant was commissioned as a Second Lieutenant in the Regular Army for an indefinite term.  He was 37 years old at the time he was commissioned in the Regular Army.  He served in Iraq and did not earn any significant awards for acts of valor or achievement.  He completed a total of 14 years, 11 months, and 9 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Hood, Texas.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 20 June 2011, the unit commander requested the Commander, III Corps and Fort Hood, Fort Hood, Texas, initiate elimination proceedings on the applicant for adverse information filed in his OMPF, in accordance with AR 600-37.
The intermediate commanders reviewed the action and concurred with the recommendation to initiate elimination proceedings against the applicant. 

2.  On 4 August 2011, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2b(5) and (8) and paragraph 4-2c(5), AR 600-8-24, due to his personal acts of misconduct, conduct unbecoming an officer and adverse information filed in his OMPF.  The Commander, Headquarters, III Corps and Fort Hood, Fort Hood, Texas, recommended a characterization of service of under other than honorable conditions discharge, specifically for:

     a.  On 13 November 2010, he assaulted his spouse by striking her on and about the head, face, and body causing bodily injury.  This misconduct resulted in him receiving a General Officer Memorandum of Reprimand (GOMOR) on 29 April 2011, which was later filed in his OMPF.

     b.  Conduct unbecoming of an officer as indicated by the above referenced GOMOR.

3.  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.  On 15 August 2011, the applicant acknowledged receipt of the notification to initiate elimination proceedings and elected to submit a statement in his own behalf.  

4.  On 15 September 2011, the applicant submitted a letter in support of his request for discharge.  He stated, in effect, he had the honor and privilege to serve for almost 14 years.  He contended the night of the incident he found out his wife was having an affair, an argument ensued, and she falsely accused him of assault.  He stated that his past experience with domestic altercations as a Air Force Fire Department Battalion Chief, he often responded to many domestic incidents and vowed to never allow his personal life to get to that level.  He provided documents to reflect his consistent dedication to the military, mentorship, and the community.  He stated he never touched his wife and was found not guilty of domestic abuse, however, he believed that the honorable thing to do was to request a discharge from the Army.

5.  The applicant’s chain of command recommended approval of his request for discharge in lieu of elimination.  

6.  On an illegible date, the Commander, Headquarters, III Corps and Fort Hood, Fort Hood, Texas recommended disapproval of the applicant’s request for resignation in lieu of elimination proceedings.

7.  On 3 November 2011, the applicant was notified to appear before a Board of Inquiry (BOI).  The applicant acknowledged receipt of the notification to appear before a BOI on 
15 November 2011.  

8.  On 30 November 2011, the applicant was notified to appear before a show-cause board on 13 December 2011.  The applicant acknowledged receipt on 2 December 2011.

9.  On 9 March 2012, the applicant was again notified to appear before a BOI.  On 4 April 2012, the applicant acknowledged receipt of the notification of the BOI.

10.  On 11 April 2012, the applicant submitted his resignation under the provisions of AR 600-8-24, Chapter 4, in lieu of further elimination proceedings.  

11.  On 11 April 2012, 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 assaulting his spouse by striking her on and about the head, face, and body causing bodily injury, and acts of personal misconduct.  The Board recommended elimination from military service with a general, under honorable conditions discharge.  

12.  On 27 April 2012, the applicant was notified of his rights after the BOI recommended he be separated from the Army.  The applicant elected not to submit an statement in his own behalf.

13.  On  25 September 2012, the DA Ad Hoc Review Board recommended the applicant’s elimination action be accepted with issuance of a general, under honorable conditions discharge.  

14.  On 3 October 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.   

15.  The applicant was discharged from the Army on 19 October 2012, with a characterization of service of general, under honorable conditions, under the provisions of AR 600-8-24, paragraph 4-2b, for unacceptable conduct.

16.  The applicant’s service record does not contain any evidence of unauthorized absences, time lost or actions under the UCMJ.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A GOMOR, dated 29 April 2011, for a domestic disturbance on 13 November 2010.  His wife reported he accused her of cheating on him, chopped up her wedding ring with a pair of pliers, and broke her laptop over his knee.  When she attempted to leave the room, he grabbed her by the hair and head-butted her in the forehead.  He then pushed and dragged her down the stairs by the hair.  The events were witnessed by his wife’s 11 year old son.  He was then arrested and charged with assault on a family member in Bell County.  His intermediate commanders recommended the GOMOR be filed in his AMHRR.

2.  A Harker Heights Police Department Incident/Investigation Report, dated 
14 November 2010, reflects the applicant as the subject of an investigation for assault with bodily injury and family violence.

3.  A memorandum, dated 5 May 2011, reflects the applicant successfully completed the Senior Men’s Long-Term Anger Group and started individual therapy on 11 April 2011.

4.  A memorandum, dated 3 March 2011, reflects the applicant participated in individual and group therapy beginning 16 November 2010, and had completed nine anger management group sessions and eight individual therapy sessions.  

5.  A Certificate of Completion from the Fort Hood Army Community Service (ACS) Family Advocacy Program, dated 15 June 2011, reflects the applicant successfully completed a six-hour Relationship Enrichment Workshop.

6.  A Certificate of Completion from the Fort Hood ACS Family Advocacy Program, dated 
9 June 2011, reflects the applicant successfully completed a six-hour Stress and Anger Management Workshop.  

7.  A Certificate of Training, dated 12 January 2011, reflects the applicant successfully completed “Children in the Middle” given at the Fort Hood, Texas Family Life Chaplain Training Center.

8.  AF Forms 2224 (Air Force Commendation Medals), dated 11 March 2011, for meritorious service.

9.  DA Form 1059 (Service School Academic Evaluation Report), dated 20 September 2010, for achieving course standards in the AMEDD BOLC, 6-8-C20B (MS70B/67J) Course.

10.  DD Form 214-Automated (Certificate of Release or Discharge from Active Duty), reflects the applicant was honorably discharged from the US Air Force on 16 July 2010, with 12 years, 8 months, and 5 days of creditable military service.  

11.  DA Form 71 (Oath of Office-Military Personnel), dated 17 July 2010, reflects the applicant was commissioned as a Second Lieutenant in the Regular Army Medical Service Corps.

12.  Three negative counseling statements, dated 15 November 2010 through 22 June 2011, for domestic violence incident x 2 and initiation of elimination proceedings. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 31 July 2013, with all listed enclosures which include the following:

     a.  Eight letters of support, which include a letter from Senator D, dated 9 July 2009.  The letters stated, in effect, the applicant displayed a high degree of integrity, responsibility, and community involvement and the vast majority highly supported his request for a change to the characterization of his discharge.

     b.  Motion to Dismiss Family Violence-Related Case, dated 19 July 2012, reflects a motion to dismiss was submitted pursuant to a plea agreement with the applicant for successfully completing appropriate counseling as agreed in return for dismissal of the case.  The motion noted the applicant completed multiple classes through the military.

     c.  Order of Expunction, dated 4 January 2013, reflects the District Court of 169th Judicial District, Bell County, Texas, granted the applicant’s petition for expunction of records under Harker Heights Police Department Case Report Number 10-03618 and Cause No. 2C11-00739 in the County Court at Law of Bell County, Texas. 

POST-SERVICE ACTIVITY: 

The applicant states he is currently employed as a supervisor with Xerox-Texas Medical Health Partnership, an organization that managers medicare/medicaid for the State of Texas; he organized a fundraiser collecting over $4000 for the town of West in central Texas during a major explosion.

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.

5.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JNC" as the appropriate code to assign officers who are discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2b, unacceptable conduct.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and change to the narrative reason for 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 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 requests a change in the reason for the discharge because he contends the decision to eliminate him from service was based partially on his civilian charges, which were later dismissed and expunged from his record.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JNC" as the appropriate code to assign officer who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4-2b, unacceptable conduct.  The regulation further stipulates that no deviation is authorized.  
4.  The applicant contends he was found not guilty of the domestic abuse charges and the charges expunged from his record.  However, the evidence of record shows that the State of Texas pursuant to a plea agreement with the applicant agreed to dismiss the charges because he completed multiple counseling classes through the military.

5.  The applicant contends the incident that caused his discharge was a single incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Army officers.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single 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’s third party statements provided with the application speak highly of his performance.  They all recognize his good conduct during his military service and after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity.

7.  The applicant contends that since leaving the Army he continues to positively represent the military and is employed as a supervisor with Xerox-Texas Medical Health Partnership, an organization that manages the medicare/medicaid operations for the State of Texas; as well as, organized a fundraiser to collect over $4000 for the central Texas town of West during a major explosion.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

8.  The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

9.  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.  

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

11.  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:  11 April 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)		AR20130014687



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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