IN THE CASE OF: BOARD DATE: 12 January 2015 CASE NUMBER: AR20140017028 ___________________________________________________________________________ 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 his service to include his combat service and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was 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 to upgrade the characterization of his service from under other than honorable to fully honorable. 2. The applicant states in his attorney-authored statement, in pertinent part and in effect, upon multiple legal errors and inequitable actions by his chain of command, he was forced to submit a resignation made under extreme duress. He was falsely accused of domestic violence. He was also charged with the same by the local law enforcement which was eventually dropped and expunged. The accusation ultimately was compounded by his incarceration pending court-martial for the alleged offenses which led to his discharge, offenses that should have never been referred to trial as he was already punished under a GO Article 15, UCMJ. His decision of resignation in lieu of court-martial was forced by the impossible choices of losing all the benefits earned by more than 20 years of honorable service or losing custody of his daughter. Being wrongfully charged and incarcerated permitted no other alternative between the two impossible choices—he had to choose between staying incarcerated and losing custody of his daughter in a divorce action. The applicant explained the circumstances surrounding the offenses and his incarceration. The applicant also asserts that in light of his entire career, his punishment was disproportionately severe, that he was held to a higher standard than others, and that his conduct never reached the level of conduct by some senior officers he cited. His personal life began to unravel through no fault of his own when his wife began a course of wrongful behavior which he tried to initially stop and when she involved his chain of command who assumed guilt where there was none. Therefore, their actions fraught with error or inequity must be corrected. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 22 September 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 6 November 2012 d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 600-8-24 Paragraph 3-13, DFS, NA e. Unit of assignment: HHC, STB, Third Army, USA Central, Shaw AFB, SC f. Current Enlistment Date/Term: 17 August 2009, AGR pursuant to MOB orders g. Current Enlistment Service: 3 years, 2 months, 20 days h. Total Service: 26 years, 0 months, 12 days i. Time Lost: None j. Previous Discharges: ARNG (770324-881201) / NA USAR (881202-940829) / NA USAR (040331-070411) / HD (Enlisted) USAR (070412-071125) / NA (Officer) AD (071126-081112) / HD / MOB for OIF Spt USAR (081113-090816) / NA k. Highest Grade Achieved: O-4 l. Military Occupational Specialty: 38A, Civil Affairs m. GT Score: NA n. Education: Bachelor of Arts Degree o. Overseas Service: SWA p. Combat Service: Iraq (080201-081105) q. Decorations/Awards: MSM; AAM; NDSM-2; ICM-CS; GWOTSM; ASR OSR; ARCOTR-2; AFRM-M DEV; AFRM-M DEV and 20-yr DEV; MUC; CAB r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant was mobilized on 17 August 2009, for an unknown period as the mobilization orders are not available. He was 48 years old at the time of mobilization and had a Bachelor of Arts degree. He was trained in and awarded military occupational specialty (MOS) 38A, Civil Affairs. He was awarded an MSM and an AAM. He completed 26 years and 12 days of active duty and reserve service (note that the total creditable service was obtained from the applicant’s Chronological Statement of Retirement Points that does not correspond with the total provided by the DD Form 214 that is under current review). SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record shows that on 9 August 2012, the applicant was charged with the following charges: a. Charge I, violation of Article 92, UCMJ (four specifications), for disobeying lawful orders on four separate occasions (120218-120219 and 120808 x 3); b. Charge II, violation of Article 134, UCMJ, for causing substantial emotional distress upon his spouse (120429); and c. Charge III, violation of Article 133, UCMJ, for harassing spouse by installing a GPS tracker in spouse’s vehicle (120201-120809). 2. On 23 August 2012, the applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 3, AR 600-8-24, for the good of the Service in lieu of trial by a general court-martial or a board of officers. The applicant indicated he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The chain of command recommended approval of the resignation for the good of the Service with issuance of an under other than honorable conditions discharge. 3. On 16 October 2012, the Ad Hoc Review Board recommended that the applicant’s resignation be accepted with issuance of an under other than honorable conditions discharge. 4. On 18 October 2012, 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 under other than honorable conditions. 5. The applicant was discharged from the Army on 6 November 2012, with a characterization of service of under other than honorable conditions. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Charge Sheet described at the preceding paragraph 1. 2. Memorandum, dated 9 August 2012, subject: Rights of Pretrial Confinee, informed the applicant of his rights for being placed in a pretrial confinement with confinement order and checklist for pretrial confinement. 3. A county summary court search warrant, dated 18 May 2012, indicates probable cause to believe certain property, a cell phone, was to be searched and seized as evidence, with an affidavit describing reason for the belief that a search of the phone would show evidence of the crime of harassment and unlawful use of the phone. 3. Article 15, dated 2 August 2012, for causing an emotional distress of his spouse (120429), harassing his spouse (120201-120607), and disobeying a lawful order (120218-120219). The punishment consisted of forfeiture of $1,000 per month for two months (suspended) and a written reprimand, (GO), with a punitive letter of reprimand, dated 7 August 2012. 4. Memorandum, dated 26 July 2012, subject: Article 15, rendered by a Trial Defense Service counsel is self-explanatory. 5. A memorandum entitled Current Mental Status reflecting the assessment of Ms. S, an employee (LPC, MA) of the Sumter/Lee Regional Detention Center Mental Health Office." 6. Memorandum, dated 19 April 2012, subject: Central Registry Board (CRB) incident Determination, indicates the allegation of adult emotional maltreatment of the applicant by the spouse met the criteria for the maltreatment and entry into the DoD Central Registry database. 7. Eight negative counseling statements, dated between 10 February 2012 and 23 May 2012, for being placed on military protective order and its conditions; being restricted from any contact with his spouse; being instructed to have limited contact with his spouse; refusing to depart spouse’s home; being scheduled for family court appearance and limited contact with spouse; no contact order being revised to having absolutely no contact with spouse due to court hearing and agreement; lifting of military no contact order; continued following and harassing spouse and having no contact with her; being charged with a crime of domestic violence; having warrant for his arrest; possessing a concealed weapon while being prohibited under the Lautenberg Amendment terms; and being released on bond and renewal of the no contact order. 8. Deposition of the applicant’s spouse, dated 29 June 2012, is self-explanatory with numerous pages. 9. Military Protective Orders dated 22 February 2012, 27 April 2012, 23 May 2012, 13 August 2013. 10. General Officer Letters of Reprimand dated 17 March 2012 for assaulting his wife and violating a military protective order and 7 August 2012 for stalking his wife and violating a military protective order. 11. An Incident Report rendered by a city police department, dated 10 May 2012, indicates the applicant was the subject of an investigation for stalking/harassment and intimidation. 12. State county bail proceedings order, dated 21 May 2012, indicates the applicant being charged with harassment and 2nd degree harassment, provides the methods and conditions of the applicant’s release, with an affidavit, dated 14 February 2012, which shows the offenses the applicant was charged with and an arrest warrant. 13. State family court Order for termination of alimony, dated 29 June 2012, is self-explanatory. 14. Applicant’s affidavit, dated 11 March 2012, providing a mutual agreement to allow his spouse to reside in their marital property with stipulation. 15. Four OERs rendered during the period of service under current review: a. A “Change of Duty” report for period 17 June 2011 through 2 June 2012. The applicant was rated as “Satisfactory Performance, Promote” and received a rating of “Fully Qualified” from the senior rater; b. A “Change of Duty” report for period 18 August 2010 through 16 June 2011. The applicant was rated as “Outstanding Performance, Must Promote” and received a rating of “Best Qualified” from the senior rater; c. An “Annual” report for period 18 August 2009 through 17 August 2010. The applicant was rated as “Outstanding Performance, Must Promote” and received a rating of “Best Qualified” from the senior rater; and d. A “Change of Duty” report for period 27 November 2008 through 17 August 2009. The applicant was rated as “Satisfactory Performance, Promote” and received a rating of “Fully Qualified” from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a counsel-authored statement with a list of attachments; counsel’s affidavit, dated 4 August 2014; Bail Proceeding, dated 21 May 2012; court order for destruction of arrest records, dated 23 December 2013 due to charge being dismissed; memorandum, dated 19 April 2012, subject: CRB Incident Determination; deposition of Ms. R, dated 29 June 2012 (pages 25, 40, 43-44, 48-51, 76-77, 81, and 102); military protective order, dated 3 February 2012; Article 15 appeal statement, dated 20 August 2012; GOMOR, dated 17 March 2012 and filing determination; Article 15, dated 2 August 2012 with punitive letter of reprimand, dated 7 August 2012; Article 15, dated 16 July 2012; document in file shows he did not demand trial by court-martial; memorandum of reprimand filing determination, dated 9 April 2012; commander’s review of a pretrial confinement, dated 9 August 2012, with checklist for the confinement; Charge Sheet, dated 9 august 2012; memorandum for military magistrate, dated 10 August 2012, subject: 48-Hour Probable Cause Determination, Pretrial Confinement [of the applicant]; rights of pretrial confine, dated 9 August 2012; health record, dated 23 May 2012; a chaplain’s affidavit, dated 29 August 2014; and a divorce decree, dated 24 June 2013. POST-SERVICE ACTIVITY: The applicant provided none. REGULATORY AUTHORITY: 1. Army Regulation 635-100 sets forth the basic authority for the separation of commissioned and warrant officers from the active Army. Chapter 3, Section XV establishes policy and procedures for involuntary relief from active duty. Paragraph 3-58(g) provides that an officer who is found guilty, or action is taken tantamount to a finding of guilty, in a Federal or State court may be immediately released from active duty by the Secretary of the Army, when the offense is punishable under the UCMJ with confinement of 1 year or more, or when the offense involves moral turpitude, regardless of the sentence received or the maximum punishment under any code. 2. Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers. Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial. 3. 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. 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 issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The record indicates the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. The applicant voluntarily requested resignation in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24. The appropriate authority approved the applicant's request and issuance of an under other than honorable conditions characterization of service. The record confirms that by the misconduct, the applicant diminished the overall quality of his service below that meriting an honorable or a general, under honorable conditions discharge. 3. The applicant contends the characterization of his discharge was improper because he erroneously received an under other than honorable conditions discharge based on false information. However, the record indicates the applicant’s request for resignation in lieu of court-martial was approved with a characterization of service as under other than honorable conditions. He also made additional requests, such as removal of all negative references from his OMPF relating to GOMOR, letters of reprimand, OERs, and UCMJ actions that are not within the purview of this Board, but may apply through the appropriate channels within the Army Review Boards Agency. 4. Furthermore, regarding his contention that his discharge was improper because upon multiple legal errors and inequitable actions by his chain of command, he was forced to submit a resignation made under extreme duress; he was falsely accused of domestic violence; and was also charged with the same by the local law enforcement which was eventually dropped and expunged. 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated. In fact, the applicant’s GO Article 15, GOMOR, and numerous negative counseling statements justify serious incidents of misconduct that led to the charges for trial by court-martial. The applicant’s statements alone do not overcome the government’s presumption of regularity. Moreover, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record. 5. The applicant contends his personal life began to unravel through no fault of his own when his wife began a course of wrongful behavior which he tried to initially stop and when she involved his chain of command, they assumed guilt where there was none. However, the evidence of record shows that during the serious incidents of misconduct, the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment. The evidence of record indicates the applicant failed to respond appropriately to these efforts. 6. The applicant contends that in light of his entire career, his punishment was disproportionately severe, that he was held to a higher standard than others, and that his conduct never reached the level of conduct by some senior officers he cited. However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 7. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant’s discharge is commensurate with his overall service record. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 12 January 2015 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted no additional documents. 2. The applicant presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the 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: General, Under Honorable Conditions Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change 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) AR20140017028 Page 2 of 9 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1