BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160004644 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: 19 October 2017 DOCKET NUMBER: AR20160004644 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: 19 October 2017 DOCKET NUMBER: AR20160004644 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: 1. The applicant requests, in effect, an upgrade of his general, under honorable conditions discharge and removal of a General Officer Memorandum of Reprimand (GOMOR) and allied documents from his Official Military Personnel File (OMPF). 2. The applicant states the: * chain of command failed to follow the requirements prescribed in Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), therefore his discharge is invalid * Army Discharge Review Board (ADRB) failed to exercise its duty to fully review his case when it was presented to the board * GOMOR is invalid due to the improper AR cited in the GOMOR a. He states required counseling and rehabilitation did not take place, and the required education on the benefits of an honorable discharge were ignored. (1) He was not provided an evaluation of his conduct or performance, rehabilitation, or a plan to allow him to improve. The DA Form 4856 (General Counseling), dated 12 December 2003, that he received is dated the same date as the date he was notified of the commander's intention to initiate separation action and one day after the imposition of nonjudicial punishment (NJP). He adds that the form was not presented to him and the form is not signed. (2) He states the governing AR requires counseling and rehabilitation to occur before initiating separation action. He offers references from AR 635-200: * paragraph 1-15 (Guidance) – * subparagraph a, unless separation is mandatory, the potential for rehabilitation and further useful military service will be considered by the separation authority * subparagraph b, adequate counseling and rehabilitation measures will be taken before initiating separation action against a Soldier when the reason for separation so specifies * paragraph 1-16 (Counseling and rehabilitative requirements) – * subparagraph a (General), item 6, instructs commanders to ensure adequate counseling and rehabilitative measures are taken before initiating separation proceedings for minor disciplinary infractions or a pattern of misconduct * subparagraph c (Rehabilitation), shows rehabilitation measures are required prior to initiating separation proceedings for minor disciplinary infractions/patterns of misconduct (with local reassignment at least once with a minimum of 3 months of duty) * subparagraph d (Waivers), waiver of the counseling requirement is not authorized; the rehabilitative transfer requirement in chapter 14 may be waived * paragraph 14-2 (Policy) – * subparagraph a, action will be taken to separate a Soldier for misconduct when it is clearly established that, despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed * subparagraph d, before taking action against a Soldier under section III of this chapter because of minor disciplinary infractions or a pattern of misconduct, commanders will ensure that the Soldier has received adequate counseling and rehabilitation (3) He states he was not provided instruction on the benefits of an honorable discharge after he received a field grade NJP. A review of his DA Form 2-1 (Personnel Qualification Record), item 19 (Specialized Training), shows it is not annotated with a date for either Uniform Code of Military Justice (UCMJ) or Benefits of an Honorable Discharge. b. He also states the ADRB was negligent when it failed to conduct a thorough and complete review of his separation action for compliance with the regulatory requirements. (1) He refers to errors and deficiencies in the ADRB report, as follows: * Counseling Records Available: Yes/No; both boxes are checked * Performance Ratings Available: Yes/No; both boxes are checked * Post Service Accomplishments: The entry only covered the first year after his separation; the board failed to review documentation he submitted that offered much more information (a) He referred to his previous discussion pertaining to the absence of counseling and stated the ADRB failed to address the matter and ignored this deviation from the regulatory procedure. (b) He adds that he never received a Noncommissioned Officer (NCO) Evaluation Report (NCOER) even though he was an NCO. (c) He also raised the issue of the failure of his chain of command to present him with the memorandum removing him from the Special Forces Qualification Course. He states the action was appealable, but he was deprived of the opportunity to appeal. (d) He states that a memorandum (to the commander) indicating he was informed of his right to counsel and allowing him to elect the option to submit statements was not presented to him by the commander, but it was included in the separation packet. (2) He refers to the memorandum he provided to the ADRB and his "Post Active Duty" (on page 7). He states a 2-page professional history that he submitted detailed his post-service employment, including his employment as a career firefighter, community college instructor, and Department of the Army Civilian (Lead Firefighter). The ADRB did not acknowledge this information. (3) He states the ADRB had a duty to review all of the material and determine the facts of his case. The ADRB denied him due process. c. He states the GOMOR shows it was imposed as an administrative measure in accordance with (IAW) AR 190-5 (Military Police Motor Vehicle Traffic Supervision). This AR does not provide the authority to issue a GOMOR in his case and the GOMOR is invalid. He adds that two memoranda in his separation packet cite the GOMOR as evidence of a pattern of misconduct and the reason for separation. d. The applicant provides a summary of his post-service employment that includes significant incidents he has responded to in the performance of his duties. He states he has received the highest marks on every Civilian Base System Evaluation Report he has received. 3. The applicant provides a self-authored statement (summarized above) and copies of the following documents in support of his application: * Exhibit A – ADRB memorandum, dated 25 March 2013 * Exhibit B – DA Form 4856, dated 12 December 2003 * Exhibit C – Memorandum for Physical Examination * Exhibit D – DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) * Exhibit E – GOMOR, dated 5 December 2003, and allied documents * Exhibit F – DA Form 2-1, page 2 * Exhibit G – ADRB Case Report and Directive, Number AR20120020050 * Exhibit H – Counsel's memorandum on behalf of applicant to the ADRB * Exhibit I – Professional History * Exhibit J – Notification of Non-Academic Relief – Misconduct * Exhibit K – Memorandum (Applicant's Rights and Election of Options) * Exhibit L – Memorandum (Notice of Recommended Separation Action) * Exhibit M – Memorandum (Notice of Initiation of Separation Action) * Exhibit N – Standard Form (SF) 50 (Notification of Personnel Action) * Exhibit O – Civilian Base System Evaluation Reports and Records * Exhibit P – DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States and in the Illinois ARNG from 30 April 1998 through 27 October 1999. He was awarded military occupational specialty (MOS) 11B (Infantryman). 2. He enlisted in the Regular Army (RA) on 28 October 1999 for a period of 3 years. a. He served in Alaska from 28 November 1999 to 2 June 2002. b. He extended the period of his 3-year enlistment on two occasions; on 9 April 2002 for a period of 2 months and then on 20 May 2002 for a period of 34 months. c. He was assigned to Company D, Support Battalion, 1st Special Warfare Training Group (SWTG) (Airborne), Fort Bragg, NC, on 21 August 2002. d. He attained the rank of sergeant/pay grade E-5 on 1 May 2003. 3. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 23 October 2003, pertaining to the applicant shows Major (MAJ) Edward J. A___, Commander, Support Battalion, initiated a Flag based on adverse action. 4. On 5 December 2003, the applicant was reprimanded by Major General (MG) Geoffrey C. L___, Commanding General (CG), U.S. Army John F. Kennedy Special Warfare Center and School, Fort Bragg, NC. He was reprimanded for engaging in sexual relations with another service member's wife, in violation of Article 134 (General Article), UCMJ. a. The CG stated, "On multiple occasions between July and November, you have had sexual intercourse with Mrs. B___, spouse of a fellow Soldier. On 22 October 2003, your commander issued you a no contact order. You chose to disobey that order by continuing to contact Mrs. B___ on numerous occasions. Your conduct in violating the sanctity of the marriage of a fellow Soldier was both prejudicial to the good order and discipline within the Army and brought discredit upon the armed forces." b. It also shows, "This reprimand is imposed as an administrative measure, IAW AR 190-5 and AR 600-37 [Unfavorable Information], and not as punishment under the UCMJ. It may be permanently filed in your OMPF. Alternatively, it may be filed in your unit personnel file, until you transfer to another general court-martial jurisdiction, or for a period not to exceed three years, whichever occurs first. Because this reprimand contains derogatory information that reflects adversely upon your character, integrity, trustworthiness and reliability, I am referring it to you for comment. You will acknowledge receipt of this reprimand by signing and dating the enclosed acknowledgement. You may submit matters in your own behalf through your chain of command to me, within seven calendar days after receipt of this memorandum. I will consider any matters you submit prior to my final decision." c. The GOMOR lists two DA Forms 2823 (Sworn Statements) as enclosures. d. On 9 December 2003, the applicant acknowledged receipt of the GOMOR. e. On 15 December 2003, the applicant submitted his response. He requested the GOMOR be placed in his local records file instead of filing it in his OMPF. He offered information pertaining to his performance at the MOS 18E (Special Forces Communications) course. He also expressed his desire to continue to serve in the U.S Army. He addressed the misconduct for which he was issued the GOMOR in the following two statements: * "I have and am learning a very important lesson which can only, with the utmost of my capabilities, benefit the military and my future in the only establishment I have known and admire most." * "I dearly and wholeheartedly apologize for the disruption and inconveniences this situation has caused." f. On 9 February 2004, MG L____ directed the GOMOR be filed in applicant's OMPF. g. The GOMOR, applicant's acknowledgment and response, and the filing directive (a total of 4 pages) are filed in the performance folder of the applicant's OMPF. 5. A DA Form 2627, dated 9 December 2003, shows Lieutenant Colonel (LTC) Todd D___, Support Battalion, 1st SWTG (Airborne), notified the applicant that he was considering whether he should be punished under Article 15, UCMJ, for having received a lawful command from MAJ Edward J. A___, his superior commissioned officer, to have no contact with Mrs. Karen B___, he did at or near Fort Bragg, NC, on divers occasions, willfully disobey the same, in violation of Article 90 (Willfully disobeying superior commissioned officer), UCMJ. a. On 11 December 2003, the applicant acknowledged that he had been afforded the opportunity to consult with counsel. He indicated that he did not demand trial by court-martial. He requested a closed hearing, a person to speak in his behalf was not requested, and matters in defense, mitigation, and/or extenuation were not presented. b. In a closed hearing, all matters presented in defense, mitigation and/or extenuation were considered by LTC D___. He imposed the following punishment: reduction to the rank of SPC (E-4), forfeiture of $874.00 a month for 2 months, extra duty for 45 days, and restriction for 45 days to the limits of Fort Bragg. He also directed the DA Form 2627 be filed in the restricted folder of the applicant's OMPF. c. On 11 December 2003, the applicant indicated he did not appeal the NJP. d. A copy of the DA Form 2627 is not filed in the restricted folder of the applicant's OMPF. 6. A DA Form 4856, dated 12 December 2003, in pertinent part, shows Master Sergeant (MSG) G___ counseled the applicant and advised him if his behavior/ conduct continues, separation action may be initiated under the provisions of (UP) AR 635-200, chapter 14 (Separation for Misconduct), based on a pattern of misconduct. The form is not signed by the applicant or MSG G___. 7. A Standard Form 600 (Chronological Record of Medical Care), Mental Status Evaluation, shows the applicant was evaluated on 18 December 2003. The applicant was found to be fully oriented, his thinking process was clear, behavior and thought content normal, memory good, and mood or affect unremarkable. The examining medical official found the applicant was mentally responsible, he had the mental capacity to understand and participate in separation proceedings, and he met the medical retention requirements. 8. On 12 January 2004, the applicant's commander notified him that he was recommending him for separation UP AR 635-200, paragraph 14-12b(2), for acts or a pattern of misconduct. a. The reasons for his proposed action were the applicant willfully on divers occasions disobeyed a no contact order that he was given, which resulted in a Field Grade Article 15, and he received a GOMOR for adultery. b. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending he receive a general, under honorable conditions characterization of service. 9. Following the notification, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He requested consulting counsel and representation by military counsel. b. He indicated that he would submit statements in his own behalf. c. He acknowledged that he understood he could receive an honorable or a general, under honorable conditions discharge. He also acknowledged that he may expect to encounter substantial prejudice in civilian life in the event that he received a general discharge under honorable conditions. d. The applicant and counsel (a staff judge advocate officer) each placed their signature on the document. 10. The applicant provided a self-authored statement (3 pages), along with three statements from his peers and numerous documents from his military personnel records. In his statement he provided a summary of his military training, duty assignments, and job performance. He expressed his desire to continue a career in the U.S. Army as an infantryman. He addressed the misconduct that was the basis for his separation action in the following two statements: * "I have and am learning a very important lesson, which can only, with the utmost of my capabilities, benefit the military and my future in the only establishment I have known and admire most." * "I dearly and wholeheartedly apologize for the disruption and inconveniences this situation has caused." 11. The company commander recommended the applicant be discharged from service with a general, under honorable conditions characterization of service. He noted that he did not consider other disposition feasible or appropriate because further rehabilitative efforts would not be effective and rehabilitation would not produce the quality soldier required for the U.S. Army. 12. The battalion commander recommended the applicant be discharged from service with a general, under honorable conditions characterization of service. He recommended he not be transferred to the Individual Ready Reserve (IRR). 13. The separation authority directed that the applicant be discharged UP AR 635-200, paragraph 14-12b(2), with a general, under honorable conditions discharge. He also directed that the applicant will not be transferred to the IRR. 14. The applicant's DD Form 214 shows he was discharged under honorable conditions (general) on 9 April 2004 UP AR 635-200, paragraph 14-12b, for misconduct with separation code "JKA" (pattern of misconduct). It shows in – * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – * Army Achievement Medal (3rd Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Infantryman Badge * Parachutist Badge * Air Assault Badge * item 14 (Military Education) – * Primary Leadership Development Course * Basic Noncommissioned Officer Course * Combat Lifesaver Course * Radio Telephone Operator Course 15. On 22 March 2013, the ADRB considered the applicant's request for upgrade of his discharge. The ADRB Case Report and Directive provides a summary of the applicant's request; the discharge under review; his overall record; post discharge activity; facts, circumstances, and legal basis for separation; and a summary of the ADRB hearing (i.e., applicant's counsel's presentation and the board's discussion, determination, recommendation, and action directed). a. It is noted that the case report shows for "Counseling Records Available" and for "Performance Ratings Available" there is an "X" in both boxes for the response. b. The ADRB determined by unanimous vote that the reason for the applicant's discharge and the character of his service were both proper and equitable. The ADRB denied the relief requested by the applicant. 16. In support of his application the applicant provides documents (identified in his application as Exhibits A – P, most of which were previously summarized), along with comments emphasizing that many of the documents were prepared/ signed on or about the same dates (e.g., the GOMOR, NJP, and DA Form 4856). a. The DA Form 4856, dated 12 December 2003, he contends was never presented to him. b. A memorandum, dated 12 December 2003, subject: Letter of Intent, that shows the commander referred the applicant for a medical examination based on involuntary separation processing. c. His DA Form 2-1 that fails to show he received specialized training pertaining to the UCMJ or the Benefits of an Honorable Discharge, which violates the separation processing procedures outlined in AR 635-200. (Item 19 shows he completed ATP (Army Tactics, Techniques, and Procedures) 21-114 (Basic Combat Training (BCT)) in August 1998. d. The ADRB Case Report and Directive, which he states is inaccurate, untrue, and failed to address multiple issues presented to the board. e. An 8-page memorandum submitted by applicant's counsel to the ADRB outlined the characterization of service, separation authority, reentry code, and narrative reason for the applicant's discharge. (1) It also shows, in pertinent part: * MAJ Edward J. A___ issued a "No Contact Order" to the applicant on 22 October 2003 * Most of the statements gathered against the applicant pre-date the 22 October 2003 "No Contact Order" * The applicant denied being notified of the Flag, dated 23 October 2003 * Memorandum of Notification of Non-Academic Relief – Misconduct, dated 20 October 2003, was not given to the applicant; it was given to him by the Trial Defense Service office too late to appeal * The applicant did not sign the memorandum acknowledging notification of the separation action (2) Counsel also provided a summary of the applicant's military service, including his military education and awards; letters of support; and his post-active duty accomplishments. He asserted the actions by the applicant's command disregarded due process, Army regulations, and the principles of fairness. f. A professional history of the applicant that provides information pertaining to the applicant's training and service in both the ARNG and the RA, along with his post-service employment and volunteer service. g. Records documenting the applicant's post-service employment as a Department of the Army Civilian that show he was promoted to lead firefighter (GS08), effective 14 June 2015. Also, civilian evaluation reports, performance counseling forms, and individual development plans (spanning the period 9 May 2011 to 31 October 2015) that document job responsibilities and performance. REFERENCES: 1. ATB 21-114 governs the phases and subjects of BCT. It shows, in pertinent part, that during phase 1, recruits learn about Army heritage and Army core values, including the benefits of an honorable discharge. 2. AR 190-5 (Motor Vehicle Traffic Supervision) covers motor vehicle traffic supervision. It outlines policy on vehicle registration and also implements the 0.08 blood alcohol content as the standard for adverse administrative actions prescribed in the regulation. 3. AR 600-8-104 (Military Personnel Information Management/Records) provides policies and operating tasks governing the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. The Authorized Documents table provides guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature. It shows the letter/memorandum, referral correspondence, member's reply, and allied documents will be filed in the performance folder of the OMPF unless otherwise directed. All other allied documents not listed will be filed in the restricted folder of the OMPF. 4. AR 27-10 (Military Justice), Chapter 3 (NJP), subparagraph b (Reprimands and admonitions), shows commanding officers have authority to give admonitions or reprimands either as an administrative measure or as NJP. 5. AR 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 3 (Unfavorable Information in Official Personnel Files), paragraph 3-4 (Filing of nonpunitive administrative letters of reprimand, admonition, or censure in official personnel files), provides guidance for filing in the OMPF. A letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual. Letters filed in the OMPF will be filed in the performance folder. The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter. A letter to be included in a Soldier's OMPF will be referred to the recipient concerned for comment according to paragraph 3-6. b. Chapter 7 (Appeals and Petitions), paragraph 7-2 (Policies and standards), provides for appeals for removal of OMPF entries. It shows that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 6. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 (Character of Service/Description of Service) provides that a discharge certificate or certificate of release from active duty (REFRAD) will be given to each Soldier of the Army upon discharge from the Service or REFRAD. It shows in: (1) paragraph 3-7a, an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) paragraph 3-7b, a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends a GOMOR and allied documents should be removed from his OMPF and his general, under honorable conditions discharge based on a pattern of misconduct should be upgraded because the: * GOMOR is invalid due to an improper regulation cited in the GOMOR * requirements prescribed in AR 635-200 were not followed because – * the required counseling and rehabilitation did not take place * the required education on the benefits of an honorable discharge were ignored * he was not provided an NCOER evaluating his conduct/performance * the ADRB failed to exercise its duty to fully review his case 2. Records show the applicant enlisted in the ARNG on 30 April 1998 and that he completed BCT in August 1998. a. Item 19 of his DA Form 2-1 does not contain entries for "Military Justice" and "Benefits of an Honorable Discharge." However, item 19 shows he completed ATP 21-114 (BCT), which included information pertaining to military justice (UCMJ) and the benefits of an honorable discharge. b. There is no evidence of record that shows he was provided instruction on the benefits of an honorable discharge after he received NJP. However, subsequent to receiving NJP, the applicant indicated with his signature (on two separate occasions) that he understood the benefits of an honorable discharge (i.e., he acknowledged that he may expect to encounter substantial prejudice in civilian life if he was issued a general, under honorable conditions discharge). 3. The evidence of record shows the applicant was promoted to SGT (E-5) on 1 May 2003. There is no evidence to show that rater qualification was met and that an event requiring an NCOER (e.g., change of rater, change of duty) occurred that would have required an NCOER prior to the applicant being reduced to SPC (E-4) on 11 December 2003. There is also no evidence indicating a relief for cause NCOER should have been completed. 4. On 5 December 2003, the applicant was issued a GOMOR for engaging in sexual relations with another Soldier's wife, in violation of Article 134, UCMJ. a. The GOMOR shows, "This reprimand is imposed as an administrative measure, IAW AR 190-5 and AR 600-37, and not as punishment under the UCMJ. b. The administration of the GOMOR is governed by AR 600-37. It appears that the reference to AR 190-5 was included in the GOMOR as a result of administrative error because the reason for the GOMOR does not pertain to an adverse action governed by AR 190-5. c. The applicant was afforded the opportunity (i.e., due process) to provide comments and rebuttal to the GOMOR. He did not challenge the referenced AR and/or request its deletion when he submitted his response/rebuttal to the issuing authority. The fact that the GOMOR contains the entry "IAW AR 190-5" is clearly harmless administrative error. It is noted that the applicant does not challenge the validity of the facts and circumstances that are the basis for the GOMOR. d. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that the GOMOR that is filed in the performance folder of his OMPF is untrue or unjust. There is an insufficient basis for removing the GOMOR from his OMPF. 5. The evidence of record shows that on multiple occasions between July and November 2003 the applicant willfully disobeyed a lawful command from a superior commissioned officer by failing to obey a "No Contact Order." This behavior clearly established a pattern of misconduct. a. The evidence of record also shows on: * 23 October 2003, the commander initiated a Flag for adverse action * 5 December 2003, the CG issued him a GOMOR for adultery; he was afforded due process * 11 December 2003, he accepted field grade NJP for disobeying a no contact order on divers occasions; he was afforded due process * 12 December 2003, he was counseled by an NCO on his conduct * 12 January 2004, the company commander notified him that he was recommending him for separation for acts or a pattern of misconduct; he was afforded due process b. During the course of administering the foregoing actions, it is reasonable to conclude that the applicant was advised/counseled on his misconduct for which each action was being taken. In fact, the applicant acknowledged with his signature on correspondence pertaining to the GOMOR, NJP, and the separation action that his misconduct was discussed and communicated to him. c. On at least two occasions the applicant failed to apologize or express remorse for his misconduct and there is no evidence he changed his behavior. * the company commander found further rehabilitative efforts of the applicant would be ineffective * the battalion commander recommended against his transfer to the IRR * the separation authority directed that he not be transferred to the IRR d. The evidence of record shows the requirements for counseling were satisfied by the chain of command through the steps and actions that were taken. The evidence of record also shows that further rehabilitative efforts were waived. 6. The issues the applicant raised with respect to the ADRB Case Report and Directive are acknowledged. a. The ADRB summarized the applicant's request (as presented by his counsel), the applicant's military service, and the governing regulatory guidance. b. The box checks (i.e., both "Yes" and "No") for the two items are noted. However, it appears this is merely administrative error. c. The contention that the ADRB acknowledged only the first year of his post-service employment/accomplishments is noted. However, the fact that additional post-service employment/accomplishments was/were not summarized by that board does not mean the ADRB members did not consider the entirety of evidence the applicant or his counsel submitted. d. There is no evidence of record that he petitioned the ADRB to reconsider his request for upgrade of his discharge based on the matters he identified to this Board (i.e., deviation from regulatory procedures and administrative errors). e. The evidence of record does not support the applicant's contention that the ADRB failed to review all of the material and determine the facts of his case. 7. The applicant's administrative discharge UP AR 635-200, paragraph 14-12b, for misconduct based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the type of discharge directed, authority, and narrative reason shown on the applicant's DD Form 214 are appropriate and correct. 8. The evidence of record shows the applicant received a GOMOR for violation of Article 134, UCMJ, by having sexual intercourse with the spouse of a fellow Soldier and he acknowledged guilt when he accepted NJP for violation of Article 90, UCMJ, by willfully disobeying a lawful command on multiple occasions from a superior commissioned officer by failing to obey a "No Contact Order." a. He was reduced from SGT (E-5) to SPC (E-4). b. He failed to complete his 6-year active duty service obligation. c. The evidence of record shows an UOTHC discharge is normally considered appropriate for Soldiers discharged UP AR 635-200, paragraph 14-12b. d. The period of service under review was characterized as general, under honorable conditions. 9. The applicant's post-service employment record, accomplishments, and volunteer service were also considered. The applicant's good post-service conduct and accomplishments are noteworthy. Post-service conduct is not normally a basis for upgrading a discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004644 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004644 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2