IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 June 2014

      CASE NUMBER:  	AR20130021513
___________________________________________________________________________

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 notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include his combat service.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.





      
      
      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 discharge characterization from general, under honorable conditions to fully honorable and a change to the narrative reason for the discharge.

2.  The counsel on behalf of the applicant states, in effect, that there are two material errors that were substantially prejudicial to the applicant’s rights:

	a.  Propriety - the underlying allegations, as discussed below, were untrue; and,

	b.  Equity - applicant had 11 total years of honorable service, an outstanding record, and outstanding post-service conduct.

3.  Counsel states, in effect, that the alleged relationships the applicant had with former colleagues were not inappropriate.  Secondly, neither LT A nor 2LT P were married at the time of the alleged relationships.  At the time, the applicant had been separated from his wife for over two years.  Thirdly, there was never any inappropriate relationship.  Each allegation in the reprimand was either unsubstantiated or not a violation of a law.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 December 2013
b. Discharge Received:			General, Under Honorable Conditions 
c. Date of Discharge:				27 January 2011				
d. Reason/Authority/SPD/RE Code:		Unacceptable Conduct, AR 600-8-24 								Paragraph 4-2b, JNC
e. Unit of assignment:				TSB, 2nd Bn, 11th Infantry Regiment 								Lieutenant Training Battalion, Fort Benning 							GA	
f. Current Entry Date/Term:			17 September 2009, Indef 		
g. Current Term Net Active Service:		1 year, 4 months, 11 days	
h. Total Service:				10 years, 1 month, 11 days
i. Time Lost:					None
j. Previous Discharges:			USAR (001216-010909), NA									IADT (010910-020201), HD									USAR (020202-030209), NA									OAD (030210-040125), HD									USAR (040126-060708), NA									OAD (060709-070820), HD									RA (070821-090916), HD	
k. Highest Grade Achieved:			O-1
l. Branch:					11Z, Infantry
m. GT Score:					NA
n. Education:					14 years
o. Overseas Service:				Korea/SWA
p. Combat Service:				Iraq and Kuwait (030429-031224)
q. Decorations/Awards:			ARCOM, AAM-2, NDSM, ICM-w/CS 								GWOTSM, KDSM, ASR, OSR-2, AFRMW/”M”
      Device
r. Administrative Separation Board: 		No  
s. Performance Ratings:			None
t. Counseling Statements:			No
u. Prior Board Review:				Yes

SUMMARY OF SERVICE:		
	
The applicant enlisted in the USAR on 16 December 2000.  He was 20 years old and was a high school graduate.  He served in the USAR until 2009.  After successfully attending Officer Candidate School, he was commissioned as a second lieutenant on 17 September 2009.  He was 29 years old at the time and had two years of college.  The applicant’s record shows he was awarded an ARCOM, two AAMs, and served a combat tour in Kuwait/Iraq in 2003.    

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 8 October 2011, the applicant was notified of initiation of elimination proceedings under the provisions of AR 600-8-24, Chapter 4, paragraph 4-2b, due to misconduct, moral or professional dereliction substandard performance and misconduct.

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

	a.  conducting a series of substantiated derogatory activity resulting in a General Officer Memorandum of Reprimand (GOMOR), dated 5 February 2010, that was filed in his AMHRR.  

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

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.  

4.  The record is void of the applicant’s resignation letter from the service under the provisions of Chapter 4, AR 600-8-24, in lieu of elimination.  However, in the memorandum from Human Resources Command (HRC), dated 2 December 2010, references the applicant’s resignation.

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 9 December 2010, 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 27 January 2011, 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.  Academic Evaluation Report (100617), Infantry Basic Officer Leader Course.  The applicant achieved course standards.

2.  A GOMOR, dated 5 February 2010, for engaging in an inappropriate, sexual relationship with two married colleagues from the Basic Officer Leadership Course II.    

EVIDENCE SUBMITTED BY THE APPLICANT:

Counsel submits a supplemental statement, an online DD Form 293, GOMOR, 15-6 investigation, and a DD Form 214.  

POST-SERVICE ACTIVITY: 

None provided with the 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.  Counsel’s request for an upgrade of the applicant’s characterization of 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 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 repeated incidents of unacceptable conduct, 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.  Counsel contends the allegations are untrue.  Each allegation in the reprimand is either unsubstantiated or not a violation of a law.  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 unjustly discharged under false allegations or the GOMOR is untrue.  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.   

5.  Counsel contends the applicant had 11 total years of honorable service, an outstanding record, and outstanding post-service conduct.  However, the applicant’s service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of unacceptable behavior as reflected in the GOMOR.  

6.  Counsel contends the applicant’s narrative reason for the discharge should be changed.  However, the applicant was separated under the provisions of Chapter 4, paragraph 4b, 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.  
7.  The records show the proper discharge and separation authority procedures were followed in this case. 

8  Therefore, the reason for discharge and characterization of service being both proper and equitable, recommend the Board deny relief.

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 notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include his combat service.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance     Date:  10 June 2014      Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  Yes [redacted]

Witnesses/Observers:  No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Business Advertisement – 1 page
	b.  Divorce proceedings – 1 page
	c.  15-6 investigation proceedings selected document – 1 page
	d.  Business incorporation letter with W-2 – 4 pages
	e.  Letter of References – 2 pages

2.  The applicant presented no additional contentions.

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:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20130021513



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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