1. Applicant's Name: a. Application Date: 3 July 2018 b. Date Received: 3 July 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable and a reentry eligibility (RE) code change. The applicant seeks relief contending, in effect, the applicant was a victim of retaliation by his commander, and there were significant errors and injustices associated with his separation. Counsel states the applicant served the United States honorably from the beginning of his career in 1996 until it was unjustly ended in 2013. It appears that his command chose not to credit his many years of valuable service, including a deployment, when recommending that he be separated. Counsel asserts that LTC H. unfairly reprised against the applicant following the IG complaint filed in regard to his NCOER. The applicant accepted responsibility for the fraternization that occurred in September of 2010. However, he continued working in a position of leadership for over two years before there was any further consideration of the allegations. He was given a General Officer Letter of Reprimand (GOMOR). The purpose of a GOMOR is to rehabilitate a Soldier. Instead of allowing that process to work, his Battalion Commander, LTC D. H., decided to include adverse information in the applicant's 1 October 2011 to 30 September 2012 NCOER that should not have been included. Even after his Company Commander backed her Soldier, the applicant was a victim of reprisal by L TC H. It is obvious, since LTC H. served the applicant with a Letter of Reprimand dated 25 September 2012, and then initiated a separation action within 48 hours of filing the IG complaint, that the actions of LTC H. were in reprisal of the applicant's IG complaint. Counsel asserts that LTC H. violated National Guard and Department of Defense regulations by his actions. The applicant was then separated against the recommendations of his Company Commander and First Sergeant. To make matters worse, his assigned counsel, MAJ J. A., has been indicted for perjury and official misconduct. Counsel asserts that the applicant was the victim of misconduct, and was unfairly burdened with the Under Other Than Honorable Conditions discharge characterization and adverse reenlistment code. The applicant sincerely wants to continue his service and finish his career. He is only 41 years old, and has over 16 years toward his retirement. Counsel further details the contentions in allied legal brief provided with the application. In a records review conducted at Arlington, VA on 5 February 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: Misconduct / AR 135-178 / Chapter 12-1c / NIF / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 6 July 2013 c. Separation Facts: (1) Date of Notification of Intent to Separate: 20 December 2012 (2) Basis for Separation: The applicant was informed of the following reasons: On or about 19 April 2011, he engaged in consensual sex with two junior enlisted Soldiers. It was known to him at the time of engaging in consensual sex with these two individuals that they were junior in grade to him and also under his supervision. The applicant's conduct created a clear adverse impact on unit discipline, authority, morale, and the ability of the command to accomplish its mission. The applicant's conduct significantly compromised his ability to lead and to perform his duties as* a non-commissioned officer. The applicant's conduct violates Army Command Policy as outlined in AR 600-20 Chapter 14-4 (b)5, is prejudicial to good order and discipline, and is of a nature to bring discredit upon the NY Army National Guard. The applicant's conduct violates NY State Military Law, Section 130.88 (Violation of a Lawful Order or General Regulation) and Section 130.115 (Conduct Prejudicial to Good Order and Discipline.) (3) Recommended Characterization: Unit Commander: General (Under Honorable Conditions) Battalion Commander: Under Other Than Honorable Conditions Brigade Commander: General (Under Honorable Conditions) Troop Command Commander: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: The applicant was ordered to appear before an Administrative Separation Board, which was to convene on 11 May 2013. The applicant's service record is void of the proceedings. (6) Separation Decision Date/Characterization: NIF 4. SERVICE DETAILS: a. Date/Period of Enlistment: The applicant initially enlisted in the NYARNG on 1 October 1999 for a period of 4 years, 10 months, and 19 days. The applicant was granted four previous extensions of his enlistment. The applicant's final extension was granted on 1 December 2009, for a period of 3 years, giving him a new ETS of 18 September 2013. b. Age at Enlistment/Education/GT Score: 32 / HS Graduate / 94 c. Highest Grade Achieved/MOS/Total Service: E-7 / 92A40, Automated Logistical Specialist / 16 years, 9 months, 21 days c. Prior Service/Characterizations: RA, 30 October 1996 - 29 October 1999 / HD OAD, 1 June 2002 - 7 April 2003 / HD (Concurrent Service) e. Overseas Service/Combat Service: Bosnia / Bosnia (25 August 2002 - 13 March 2003) f. Awards and Decorations: AAM-2, ARCAM-4, NDSM, GWOTSM, AFRMMD-BHG NCOPDR-3, ASR, NYS LFS MD-2, NYS OEF SVC RBN, NATOMDL, AFEM g. Performance Ratings: March 2004 - November 2004 / Fully Capable December 2004 - November 2005 / Fully Capable 31 October 2006 - 30 October 2007 / Among The Best 31 October 2007 - 30 October 2008 / Fully Capable 6 September 2009 - 6 December 2009 / Fully Capable 7 December 2009 - 30 September 2010 / Among The Best h. Disciplinary Action(s)/Evidentiary Record: Letter Of Reprimand, dated 25 September 2012, it had been* reported that the applicant had violated the Army's fraternization policy by engaging in inappropriate relations with at least two junior enlisted female Soldiers within his unit. On or about 17-September 2010, by his own sworn admission, while on Military Orders, at a hotel paid for by the New York Army National Guard, he engaged in sexual relations with two junior enlisted female Soldiers. On or about 17 September 2010, by his own sworn admission, he provided and engaged in the consumption of alcoholic beverages with two female junior enlisted Soldiers. On or about 17-September 2010, by his own sworn admission he was a married man. In the sworn statement he provided to local law enforcement authorities on or about 19 April 2011, he stated "I told them I did not want anyone seeing me in the motel," and further state that the two junior enlisted Soldiers "went ahead of me to make sure the hallway was clear so that I can come in" and that upon entry into the motel "I put my hoody up so that no one can recognize me going inside the motel." These statements indicated that he did in fact recognize the incorrectness of the intended behavior prior to the commission of this act. General Officer Memorandum Of Reprimand, dated 13 October 2012, it had been reported that on or about 17 September 2010, the applicant had violated the Army regulation by engaging inappropriate relations with at least two junior enlisted, female Soldiers within his unit that compromised the integrity of supervisory authority. This type of misconduct was unacceptable behavior for any Non-Commissioned Officer of the New York Army National Guard. As a Non- Commissioned Officer, he had a responsibility to set the example and uphold the highest ethical standards and values. i. Lost Time: None j. Diagnosed PTSD/TBI/Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; NGB Form 22; Orders 177-1091; Legal brief; NYARNG TAG denial letter; two DD Form 214; The New York Times article; Army National Guard Retirement Points History Statement; Joint Services Transcripts; DA Form 3881; GOMOR; Response to LOR; NCOER Nonconcurrence (memo); NCOER (memo); self-authored statement; email regarding IG request; Letter of Reprimand with allied documents; Separation documents; 10 DA Forms 2166-8; 4 Commendation Certificates; AAM Certificate; Certificate of Appreciation; two DA Forms 638; two ARCAM support certificates; Record of Service (memo); two letters of support; six DA Forms 1059; Certificate of Completion; seven Certificates of Training; 29A10 Diploma; Associate's Degree diploma; Bachelor's Degree diploma. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states he has earned an Associate of Arts in Criminal Justice and Bachelor of Science in Health Administration with a concentration in Health Management. The applicant is pursuing a Master's degree in Health Care Administration. 7. REGULATORY CITATION(S): Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve. Chapter 12 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. National Guard Regulation 600-200, Section III prescribes the preparation of Orders and Certificates. An Under other than honorable conditions characterization is defined in paragraph 6-8c and will be assigned a RE code 4, if the reason for discharge is not waivable for enlistment or reenlistment. A RE code 3 will be assigned, if the reason for discharge is waivable. 8. DISCUSSION OF FACT(S): The applicant, through counsel, requests an upgrade of his under other than honorable conditions discharge to honorable and a reentry eligibility (RE) code change. The applicant's record of service, the issues and documents submitted with his application were carefully reviewed. 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 military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant contends his command chose not to credit his many years of valuable service, including a deployment, when recommending that he be separated and that his discharge was an act of reprisal by his Battalion Commander. However, 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. The applicant's contentions that the separation authority ignored the recommendations of his commander and first sergeant, were carefully considered. However, AR 135-178, chapter 3-18, states the separation authority cannot authorize a characterization of service less favorable than that recommended by the administrative separation board. The evidence of the record reflects the applicant was ordered to appear before an administrative separation board. The applicant's service record is void of the board proceedings, therefore, barring evidence of the contrary, it appears the separation authority complied with the requirements of the regulation and approved the board findings with an Under Other Than Honorable Conditions discharge. The applicant contends that he had good service, which included a deployment. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The applicant desires to rejoin the Military Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on National Guard Regulation 600-200, the applicant was appropriately assigned an RE code of "3." There is no basis upon which to grant a change to the reason or to the RE code. An RE Code of "3" indicates the applicant requires a waiver prior to being allowed to reenlist. If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist. Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 5 February 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20180008853 1