BOARD DATE: 14 March 2017 DOCKET NUMBER: AR20150016700 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 March 2017 DOCKET NUMBER: AR20150016700 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 14 March 2017 DOCKET NUMBER: AR20150016700 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's general discharge (GD) to an honorable discharge (HD) and that his separation code and reentry eligibility (RE) code be indicative of honorable service. He also requests a hearing if the applicant's petition is determined to be denied on his submission alone. 2. Counsel states: a. The applicant was unjustly separated from the United States Army with a GD. The proceedings were initiated because of an incident in Alabama involving his then wife. b. Other than that single, isolated incident, the applicant's service in the Army was exemplary. He had continuously received high evaluations, awards, and commendations. He was also selected for promotion to major (O-4). c. After the incident, the applicant completed several courses including anger management and substance abuse. He completed the courses in an effort to curb any potential problem. d. Outside of the Army, the applicant is viewed as a leader in the community and his ultimate goal is to reenter the military in a Reserve status and complete his career as a distinguished officer 3. Counsel provides copies of the documents listed as enclosures in his letter to the Army Review Boards Agency, dated 16 September 2015. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 14 May 1994, the applicant accepted an appointment as a commissioned officer in the United States Army Reserve in the rank of second lieutenant. He was promoted to captain on 1 June 1998. 3. On 12 June 2004, a police report was initiated by civil authorities which states that the applicant assaulted his wife while they were on a lake boating. The report states that her injuries required her to be transported to a local hospital for treatment and the initial report from the hospital indicates that she had a broken nose, broken rib and other minor injuries. The applicant's wife signed the report affirming that the information was correct to the best of her knowledge. The applicant had fled the scene of the assault. 4. On 12 June 2004, civil authorities notified military authorities that there was a warrant issued for the arrest of the applicant for the charge of domestic violence (3rd degree). He was subsequently apprehended, arrested and transported to jail awaiting processing on 14 June 2004. His bail was set at $3,000.00 and he was ordered to appear in district court on 17 August 2004 on charges of domestic violence (2nd degree assault). The outcome of that case is not on file in the available records. (Counsel states the charges were eventually dropped because the applicant's former spouse did not receive a broken nose and other injuries could be attributed to recreational activities the couple had been engaged in on the date in question.) 5. The applicant was furnished a General Officer Memorandum of Reprimand (GOMOR) on 29 July 2004 for assaulting his wife and for conduct unbecoming an officer and a gentleman. According to the GOMOR he received he struck his wife in the head, face and various other body locations with a closed fist, resulting in a broken nose and ribs. He acknowledged receipt of the GOMOR on 4 August 2004 and he elected not to submit matters in his own behalf. 6. On 5 August 2005, the applicant submitted a rebuttal to the GOMOR he received requesting that the GOMOR be filed in his local file. He stated: a. He would never recover from the emotional terror that occurred on the night of 11 June 2004 and the sorrow he felt for his wife. b. He immediately sought help by enrolling in the Army Substance Abuse Program and attending a 6-week anger management course. c. The past 2 months had been the greatest challenge of his life as he was going through a divorce and was being faced with tremendous financial hardship from attorney fees and divorce settlement demands. 7. On 2 September 2004, the imposing authorities directed that the GOMOR be filed in the applicant's official military personnel file. In an undated letter to the commanding general, the applicant's wife recanted her statement to the police. In the letter she stated that he did not receive injuries resulting in a broken nose or broken ribs. She stated that she went to a local hospital on 11 June 2004, and that she was treated and released on the same evening. 8. On 6 December 2004, the applicant was notified that a Headquarters, Department of the Army (HQDA), Promotion Selection Boarded recessed on 7 May 2004, recommended him for promotion to major. He was told that in accordance with applicable law and regulation, the appointment of an officer may be delayed in any case in which there is cause to believe that the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she was selected from promotion. He was told that a review of his file indicated that he received a GOMOR and that his record would be referred to a Promotion Review Board which would recommend to the Secretary of the Army, one or more of the following: a. That he be retained on the promotion list. b. That his name be removed from the promotion list. c. That he show cause for retention on active duty. 9. The applicant was told that he had 30 days from receipt of his notification to submit information to the President of the Promotion Review Board and that upon receipt of his response or 30 days from receipt of his notification, whichever was later, his official records would be forwarded to the DA Secretariat for review. He was told that once the Promotion Review Board made a determination, it would be forwarded to the Secretary of the Army for final disposition. He was told that the entire process might take from eight months to a year. 10. On 23 March 2005, a board of inquiry (BOI) convened to determine whether the applicant should be discharged from the Army. The board found by a preponderance of the evidence that he did commit acts of personal misconduct and that he did conduct himself in a demeanor that is unbecoming of an officer. The board stated that this was an isolated incident; that he did have 10 years of outstanding service; and that he would in fact, through separation, lose his military career. The board recommended that the applicant be discharged from the military under honorable conditions (GD). 11. On 22 June 2005, the applicant was notified of the decision made by the BOI. He was told he could tender resignation in lieu of elimination, request discharge in lieu of elimination, apply for retirement in lieu of elimination, or submit an appellate brief and statement within 7 days after receipt of the BOI report of proceedings. He submitted an appellate brief stating that he had taken responsibility for his actions. He also stated that, after seeing pictures of injuries, listening to a statement, and combining factual information, it was apparent that the injuries were exaggerated. He believed the injuries were either self-inflicted or were caused by a skiing accident earlier in the day. He went on to provide a history of his wife's character stating that she was unhappy, resentful, and had a cloudy past. 12. On 17 August 2005, the Acting Staff Judge Advocate (SJA) conducted a legal review of the BOI and he noted a lack of evidence that the BOI was properly composed. The Acting SJA stated that the applicant was a Reserve Component (RC) commissioned officer and when the individual is an RC officer, one or more of the voting member will be an RC officer. The Acting SJA recommended that the elimination packet be returned to Fort Rucker for a rehearing by a new board including at least one RC officer in the grade of lieutenant colonel (O-5) or above. 13. The TRADOC SJA requested a rehearing by a new board on 17 August 2005. However, on 24 August 2005, the applicant voluntarily tendered his resignation from the Army under the provisions of Army Regulation 600-8-24, chapter 4, in lieu of further elimination proceedings. 14. The appropriate authority approved the applicant's resignation in lieu of elimination and directed the issuance of a GD Certificate. On 25 October 2005, the applicant was discharged under the provisions of Army Regulation 600-8-24, paragraphs 4-2b and 4-24a(1). His narrative reason for separation is "unacceptable conduct," his separation code is "BNC," and his RE code is "NA." He completed 11 years, 4 months and 12 days of net active service this period. He received a GD Certificate. 15. On 9 April 2010, the Army Discharge Review Board denied the applicant's petition for an upgrade of his GD to an HD. 16. Counsel provides numerous character statements from the applicant and the applicant's associates attesting to his post-service conduct and achievements. He provides copies of the applicant's Officer Evaluation Reports, Certificates of Awards received, and Recommendations for Awards. Counsel provides a letter from the applicant's former counsel, addressed to a major, providing him with the status of the applicant's civil case and a letter recommending him for admission to the National Reserve. Counsel provides a letter from the applicant's current employer stating that he wholeheartedly believes that the applicant would be an asset in the National Guard and any other organization. Counsel requests a hearing if the applicant's petition is determined to be denied on his submission alone. REFERENCES: 1. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel. a. Chapter 4 of this regulation prescribes the tasks, rules, and steps for eliminating officers of the Active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security. Paragraph 4-2 pertains to reasons for eliminations. Subparagraph 4-2b covers misconduct, moral or professional dereliction, or in the interest of national security such as acts of personal misconduct (including but not limited to acts committed while in a drunken or drug intoxicated state) and conduct unbecoming an officer. b. Paragraph 1-22b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to an officer whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), provided that when the authority for separation is Army Regulation 600-8-24, paragraph 4–2b and paragraph 4–24a(1), then the narrative reason for separation would be "Unacceptable Conduct" and the separation code would be "BNC." 3. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment. RE codes are not applicable to officers. 4. Personal appearances before the ABCMR are by invitation of the Board only, and are not automatically scheduled at the applicant’s request. Personal appearances are scheduled only when the Board determines a personal appearance hearing is necessary. DISCUSSION: 1. Counsel contends that the applicant's GD was inequitable because it was based on one isolated incident with no adverse action. The evidence confirms that his GD was based on a domestic violence incident in which his former spouse was injured. Aside from this incident, the applicant's service appears to have been exemplary. 2. The applicant's resignation from the Army in lieu of further elimination proceedings under the provisions of chapter 4, Army Regulation 600-8-24, was voluntary and administratively correct. He was assigned a separation code in accordance with the governing regulation. RE codes do not apply to officers, which is why his DD Form 214 shows an RE code of "NA." 3. There is no evidence in the available record that shows the applicant was improperly discharged or that the type of discharge he received is incorrect. Although an SJA found his BOI was not properly constituted, he resigned before a new, properly-constituted BOI could convene. The reasons for his decision to resign before a BOI made a final recommendation are not shown in the available evidence. 4. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant's counsel are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016700 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016700 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2