IN THE CASE OF: Mr. BOARD DATE: 15 May 2013 CASE NUMBER: AR20120020002 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the term of service 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 his general, under honorable conditions discharge be upgraded to honorable and his narrative reason for discharge be changed. The applicant also requests he be returned to active duty; his General Officer Memorandum of Reprimand (GOMOR) and Relief for Cause (RFC) Officer Evaluation Report (OER) be removed from his AMHRR; and that he be considered for promotion. 2. The applicant states, in effect; a. He was unjustly discharge and that his discharge was influence by his command's personal life. He contends he was separated from his ex-wife for 20 months before his relationship with his current wife accrued and that his relationship had nothing to do with the separation of him and his ex-wife. b. His commander pushed for his GOMOR for his relationship to be filed into his permanent AMHRR and then used that as the reason to push for a Show Cause Board and discharged him with a general, under honorable conditions discharge. c. He admitted to committing adultery; however he had been separated for almost 2 years when he met his present wife. He provided his chain of command with divorce paperwork that reflected these facts, however these facts were ignored. The Manual of Courts Martial clearly states that Commanders should take all of the facts into consideration, yet when he pointed out what was clearly in the MCM in black and white, I was ignored. d. His records will show he was an outstanding officer according to his evaluations no other blemishes in his record except for when he struggled with his physical fitness. He never had any type of trouble prior to his misconduct and had been a model Soldier, NCO, and Officer for 16 years and 7 months. He believes he was robbed of his opportunity to serve his country and ultimately to retire. e. If he is not afforded the opportunity to continue his service, he ask that he be granted early retirement from the military as it was approved by Congress in 2011. All branches have offered this except the Army. Had the Department of Army offered this as a means for conducting the current Reduction in Force as both the Departments of Navy and Air Force have done, then he could have opted to retire in lieu of going through the show cause board. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 22 October 2012 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 29 June 2012 d. Reason/Authority/SPD/RE Code: Unacceptable Conduct, AR 600-8-24, Chapter 4-2b, JNC e. Unit of assignment: HHC, 170th IN BCT, APO AE f. Current Enlistment Date/Term: 10 May 2009, Term of Service NIF g. Current Enlistment Service: 3 years, 1 month, 20 days h. Total Service: 16 years, 7 months, 8 days i. Time Lost: None j. Previous Discharges: RA-951122-000105/HD RA-000106-040121/HD RA-040122-070530/HD RA-070531-090509/HD k. Highest Grade Achieved: O-2 l. Military Occupational Specialty: 91A2B, Maintenance Officer m. GT Score: NA n. Education: College Graduate o. Overseas Service: Germany, Southwest Asia p. Combat Service: Afghanistan (110216-120215) q. Decorations/Awards: MSM, ARCOM, AGCM-4, ACM-w/2CS, NDSM, GWOTSM, NPDR-3, ASR, OSR-2, NATOMDL r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record shows he enlisted in the Regular Army on 22 November 1995 and was discharged 9 May 2009. On 10 May 2009, he was commissioned as a second lieutenant. He was 31 years old at the time and a college graduate. He attended the maintenance officer course. His record reflects he served in Germany; a combat tour in Afghanistan; achieved the rank of 1LT/O-2, and earned several awards including an ARCOM and four AGCM's. He served 16 years, 7 months, and 8 days of total active service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 23 February 2012, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2a(3); 4-2b(5); 4-2b(8); and 4-2c(5), AR 600-8-24, by reason of misconduct, moral or professional dereliction. 2. The applicant was directed to show cause for retention in the Army after failing to exercise the necessary leadership expected of an officer of his grade. 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. 3. On 15 March 2012, the applicant submitted a rebuttal requesting that leniency be shown in his case and that he be allowed to continue his service as an Active Duty Officer in the United States Army. He accepted responsibility for his actions and acknowledged that he engaged in an inappropriate relationship with a woman who was not his wife and that he failed to counsel a Chief Warrant Officer who worked for him who was also in a situation very similar to his. 4. On 30 March 2012, the intermediate commander recommended the applicant elimination under the provisions of AR 600-8-24, Chapter 4, paragraph 4-2(a) for substandard performance of duty and under paragraph 4-2(b) for misconduct and moral or professional dereliction based on the applicant's failure to exercise necessary leadership, acts of personal misconduct and conduct unbecoming an officer and recommended approval with a general, under honorable conditions discharge. 5. On 2 April 2012, the commander for Headquarters, V Corps, APO AE, a Major General, recommended the applicant be discharged from active duty service and his service be characterized as general, under honorable conditions. 6. On 23 May 2012, the Deputy Assistant Secretary (DASA) (Army Review Boards) having reviewed the applicant's case based on misconduct and moral or professional dereliction under the provisions of AR 600-8-24, paragraph 4-2b; derogatory information, paragraph 4-2c; and substandard performance of duty, paragraph 4-2a; directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 7. The applicant was discharged from the Army on 29 June 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 4, paragraph 4-2b, AR 600-8-24, for unacceptable conduct, with a Separation Program Designator code (SPD) of JNC. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A General Officer Memorandum of Reprimand, dated 11 November 2011, for engaging in an inappropriate sexual relation, as well as implicitly endorsing the inappropriate relationship of one of his warrant officers. 2. Four OERs covering the period of 7 November 2009 through 18 June 2012. Three of the reports were "successful/best qualified;" however, the OER covering the period 2 June 2011 through 6 December 2011 rated the applicant as "do not promote." EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided no additional documents. POST-SERVICE ACTIVITY: None were 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. 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 officer personnel who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4, unacceptable conduct. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his 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 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 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. The applicant contends he was unjustly discharged and that his discharge was motivated by personal influence from his commander. 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. In fact, the applicant’s documented acts of misconduct justified his reason for discharge. The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any additional supporting documentation or further evidence to corroborate his contention that he was unjustly discharged. 5. The applicant requested to be returned to active duty; the GOMOR and RFCOER he received be removed from his AMHRR; that he be considered for promotion, or early retirement. However, the applicant’s requested issues do not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding these issues. A DD Form 149 may also be obtained from a Veterans' Service Organization. 6. The applicant contends that a change in the reason for discharge would allow for him to serve again. However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating officers 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 personnel who are discharged under the provisions of Army Regulation 600-8-24, Chapter 4, and paragraph 4-2a, b, and c, unacceptable conduct. The regulation further stipulates that no deviation is authorized. 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. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 15 May 2013 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 2 No Change: 3 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) AR20120020002 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1