PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           7 September 2000  
	DOCKET NUMBER:   AR2000044655

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the narrative reason for separation (i.e., block # 28) on his DD Form 214 (Certificate of Release or Discharge From Active Duty) be changed from “Unacceptable Conduct” to “Voluntary Retirement.”

3.  The applicant states, in effect, that in November 1994 he was involved in a marital altercation with his ex-wife as a result of her relationship with another man; that the incident was thoroughly investigated; that due to his ex-wife’s role and culpability in the altercation, neither UCMJ action nor suspension of favorable personnel action was initiated against him; that he and his ex-wife were enrolled in the Army Family Advocacy Program (AFAP); that he was told that no further action would be taken against him as long as he and his ex-wife participated in rehabilitation counseling and complied with the AFAP program directives; that he did everything he was asked to do; that his ex-wife remained unsupportive and intransigent; that she continued to mix and abuse alcohol with anti-depressive medications; that she chose to conduct herself inappropriately in extra-marital relationships; that she was investigated for adultery by the USAREUR IG in Heidelberg while he was serving in Southwest Asia during the Gulf War; that he was advised by his AFAP counselor that although he was complying with the Family Advocacy Program, that his ex-wife’s uncooperative behavior might get him in trouble with his Army chain of command; that he was told that if he requested that his ex-wife be returned to the United States (US), he would most certainly be transferred as well; that he was just finishing his Ph. D. in human biology at the University of Ulm Medical School; that he was at a critical stage of his academic program; that he was afraid that if he were suddenly and unexpectedly ordered to return to the US he would fail to finish his Ph. D.; that he did his best to perform his duties in an exemplary manner, continued to attend AFAP counseling, continued to muddle through his doctorate program, and continued to try to provide love, strength and stability to his two daughters; that in spite of his efforts and his counselors’ good intentions toward him, in April 1995 he received a general officer letter of reprimand (LOR); that he was told by his counselor that the LOR was due most certainly to having to report his ex-wife’s failure to participate in the AFAP; that his chain of command held him personally responsible for the one-sided nature of their participation in the AFAP; that due to the latter he was subsequently asked to show cause for retention on active duty or be eliminated from service by reason of misconduct; that due to being burnt out from his studies and family situation, he chose not to fight the action and requested voluntary retirement in lieu of elimination; that he was permitted to honorably retire as lieutenant colonel/0-5; that he was assigned a narrative reason for separation of “Unacceptable Conduct”; that his narrative reason for separation is unjust and repudiates his honorable characterization of service; that he is living in exile in Germany as an expatriated American because he is unable to secure employment in his field in the US due to his narrative reason for 

separation; that he has 22 years of recognized demonstrated performance on and off the battlefield; and, that he would prefer to live near his children and grandchildren in the US rather than live abroad.  (TAB A – Applicant’s application with 15 enclosures) 

4.  The applicant’s military records show that he graduated from California State University-Long Beach in 1973 with a Bachelors of Science Degree in Biology.  On 18 December 1973 he was appointed and commissioned as a second lieutenant/0-1, United States Army Reserve (USAR), in the Health Services Branch.

5.  Between December 1973 and April 1995 the applicant’s record reflects the following accomplishments:

	a.  He completed a Masters of Education from Boston University in 1977; a Masters of Science from the University of Northern Colorado in Business Administration in 1980; and, a Doctor of Philosophy in Human Biology from Ulm University in Germany in 1995.

	b.  He completed military training in the following courses: Special Forces; Planning, Programming, and Budgeting Systems; Military Comptrollership; AMEDD Officer Basic and Advanced; Command and General Staff College; Air Assault; Manpower and Force Management; National Security Management Course-Industrial College of the Armed Forces; AMEDD Management; and, Airborne.

	c.  He was promoted to first lieutenant/02 on 9 July 1976, to captain/03 on 28 September 1978, to major/04 on 1 August 1986, and to lieutenant colonel/05 on 1 April 1993.

	d.  He earned and received the following awards and decorations:  Bronze Star Medal; Meritorious Service Medal (4OLC) ; Army Commendation Medal (3OLC); Army Achievement Medal; National Defense Service Medal; Southwest Asia Service Medal; Humanitarian Service Medal; Armed Forces Reserve Medal; Army Service Ribbon; Overseas Ribbon (3rd Award); Kuwait Liberation Medal; Expert Field Medal Badge; Parachutists Badge; Air Assault Badge; Special Forces Tab; French Army Parachutist Badge; Gold German Armed Forces Efficiency Badge; and, Bronze German Armed Forces Parachutist Badge.

6.  On 18 April 1995, while in Germany, the applicant received a letter of reprimand for an incident (i.e., striking his wife and pushing his daughter) that occurred on 15 October 1994.  On 27 April 1995, the applicant acknowledged receipt of said LOR and indicated he would not submit a rebuttal.  (TAB B)

7.  On 14 February 1996, the applicant received notice that he was to show cause for retention on active duty under the provisions of AR 600-8-24, paragraph 4-2b(5) and (8), because of misconduct, moral or professional dereliction and conduct unbecoming an officer.  This action was based on the April 1995 letter of reprimand for the October 1994 marital altercation.  In conjunction with the show cause notice, a DA Form 268 (Suspension of Favorable Personnel Action) was initiated.  (TAB C)

8.  On 9 July 1996, rather than going before a show cause board for retention, the applicant submitted a request for voluntary retirement under the provisions of chapter 6, paragraph 6-1c, AR 600-8-24.  Paragraph 6-1c provides that a commissioned officer must serve on active duty for 3 years in grade to retire in rank above major and below lieutenant general.  In that request the applicant indicated that his request was being submitted under the provisions of AR 600-8-24, paragraph 6-17(d), in lieu of elimination under the provisions of AR 600-8-24, paragraph 4-2b.  (TAB D)

9.  On 15 July 1996, the Commanding General at Fort Lee, Virginia, recommended that the applicant’s request for retirement be approved and that he be honorably retired in the rank of lieutenant colonel/0-5.  (TAB E)

10.  The applicant’s annual Officer Evaluation Report (OER) for the period 6 August 1995 to 5 August 1996 shows a highly successful period of service.  In Part IVa the rater gave the applicant all “1’s.”  His rater showed in Part V (Performance and Potential Evaluation-Rater) that the applicant always exceeded requirements and that he should be promoted ahead of his contemporaries.  The senior rater, in Part VIIb (Senior Rater-Comments), among other laudatory comments, stated that the applicant “has proven to be a fine staff officer, …has provided loyal support to this command and the Army Medical Department.  His departure will be a loss to the AMEDD.”  (TAB A #7)

11.  On 21 October 1996, the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) approved the recommendation of the Army Grade Determination Review Board that the applicant be retired as a lieutenant colonel/05. (TAB F)

12.  On 31 December 1996, the applicant was honorably retired by reason of “Unacceptable Conduct” and was credited with 22 years, 5 months, and 22 days active military service.  

13.  On 22 April 2000, the Army Discharge Review Board (ADRB) determined that the applicant’s single incident of misconduct in a lengthy record of 

meritorious service was an aberration in the applicant’s overall conduct and performance and concluded that the narrative reason for separation (i.e., Unacceptable Conduct) was and is inequitable.  In view of the applicant’s request, the ADRB forwarded the applicant’s record to the Army Board for Correction of Military Records (ABCMR) for resolution and included its findings and recommendation as an advisory opinion.  (TAB G)

14.  AR 600-8-24, in effect at the time, provided the basic authority for officer transfers and discharges.  Chapters 4 and 6 outline the policies and procedures for the voluntary retirement in lieu of eliminating officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and the interest of national security.

CONCLUSIONS:

1.  The applicant’s separation proceedings were conducted in accordance with law and regulations applicable at the time.  Further, the honorable characterization of service granted is commensurate with the applicant’s overall record of military service.

2.  Except for the isolated misconduct documented by the general officer letter of reprimand, the applicant’s record reflects that he served honorably for more than 22 years of active military service; distinguished himself in the area of academic achievements; attained the rank of lieutenant colonel/0-5; served in combat; and received numerous awards and decorations for his outstanding performance of duty.

3.  The Board does not condone the applicant’s misconduct, however, in view of the preponderance of honorable service and the isolated nature of the misconduct in question, the Board concurs with the finding of the ADRB in that the narrative reason for separation was and is inequitable.  Accordingly, the Board concludes that the interest of justice would best be served by changing the applicant’s narrative reason for separation to “Sufficient Service for Retirement” under the provisions of AR 600-8-24, paragraph 6-14c(1) with corresponding separation code of “RBD.”

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated by reason of “Sufficient Service for Retirement” under the provisions of AR 600-8-24, paragraph 6-14c(1) with a corresponding separation code of “RBD.” 

2.  That the Department of the Army issue the applicant new separation documents reflecting the corrections listed above.

BOARD VOTE:  

__CLA__  ___WTM_  ___TBR     GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000044655	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19961231	
DISCHARGE AUTHORITY	AR 600-8-24 C6	
DISCHARGE REASON	Unacceptable Conduct	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	110.0200.0000	
2.	144.9456.0000	
3.		
4.		
5.		
6.