RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20070000992 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Ernestine I Fields

Member

Mr. Randolph J. Fleming

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request for correction of the reason for his discharge and reinstatement in the Army to allow him to complete his enlistment in the Active Guard/Reserve (AGR) program or as a Chaplain candidate.  In addition, he now requests rescission of his separation orders and removal of the bar to his reenlistment.

2.  The applicant states, in effect, that the request for discharge in lieu of trial by court-martial that he signed under duress did not include the professional opinion and recommendation of the combat stress control psychiatrist, which was relevant to the reason why he left the airfield on 28 October 2003.  He also states, in effect, that “the abbreviated redaction of the request for discharge in lieu of trial by court-martial that counsel propositioned him with immediately after the charge hearing caused him extreme duress and did not communicate an intelligent understanding of the force of the language in Chapter 10 of Army Regulation 635-200.”  The applicant further states, in effect, the regulation is unambiguous and affords the accused a time period of “not less than 72 hours” and does not permit the accused to opt for less than 72 hours.  The applicant adds, in effect, in the command’s expedited effort to coerce him into signing the request for discharge, they inadvertently allowed the name of Specialist Michael G. B____ to remain on the defense counsel’s statement.  The applicant also invites attention to the difference in the amount of time in service shown on his Leave and Earnings Statements as compared to his latest discharge document.

3.  The applicant provides a self-authored statement, dated 31 December 2006, subject:  Memorandum of Request for Reconsideration, in which the applicant states, in pertinent part, the following:

     a.  There is a documented and obvious history of probable injustice, which resulted in biased action and wrongful judgment in his administrative discharge.  He also adds that he has provided a preponderance of documented evidence to support his claim and further states, in effect, that the charges lodged against him occurred during an isolated, abbreviated time period and do not provide a true picture of his whole career.

     b.  His request for discharge in lieu of trial by court-martial was signed under duress and did not include the written statement of the combat stress control psychiatrist.  He also states that his request for discharge does not provide evidence that he received consultation concerning possible defenses.

     c.  The request for discharge in lieu of trial by court-martial that he signed under duress does not correspond to the sample format for discharge.  He points out that the phrase, “Statements in my own behalf (are) (are not) submitted with this request” is not included in his request.  In addition, he states he was not allowed to hand-write, “Please see the accompanying documents” on his request for discharge, which allowed his unit to erroneously characterize his service before the General Court-Martial Convening Authority (GCMCA).  In addition, his request for discharge includes the phrase “and furnished an Under Other Than Honorable Certificate” whereas the sample format for discharge does not, which is another clear and evident attempt to wrongfully bias the GCMCA.

     d.  The abbreviated redaction of the request for discharge in lieu of trial by court-martial that was presented to him immediately after the charge hearing caused extreme duress and did not fully communicate the full force of a discharge under the provisions of Army Regulation 635-200, Chapter 10.  The applicant asserts that there is no regulatory authority permitting the accused to enjoy less than 72 hours to reflect on the wisdom of the decision to submit a request for discharge under the provisions of Chapter 10.  In support of his claim concerning the unit’s expedited efforts to discharge him, he points to the name of another Soldier that appears on the statement by the defense counsel.  He also states, in effect, that his defense counsel did not have a copy of the Army regulation during their consultation.

     e.  The applicant’s statement includes a brief biography of his military service.

     f.  The applicant concludes by providing a summary of email communications he has documented covering the period 16 August 2003 to 9 September 2003 pertaining to the applicant’s status and difficulties that he encountered while on emergency leave.  He also provides a documented history of events, beginning 21 September 2003, that contributed to the duress he suffered while serving in Iraq and that led to his request for discharge.

4.  The applicant also provides an Official Photograph, dated 16 April 2002; Red Cross Message for [Applicant’s Name], dated 16 August 2003, along with a chronological summary of events (from 28 August 2003 to 9 September 2003) pertaining to the applicant’s status and difficulties he encountered while on emergency leave; documents pertaining to the applicant’s military service, including his request for classification as a conscientious objector, developmental counseling, and duty performance while in Iraq during the period 7 September 2003 to 11 November 2003; DA Form 1059 (Service School Academic Evaluation Report), for the period 2 April 2002 through 30 May 2002; Fort Jackson (FJ) Form 350-100-69 (Certificate of Achievement), dated 4 June 2002, for Army Physical Fitness Test conducted on 28 May 2002; FJ Form 350-100-69, dated 7 May 2002, for Fort Jackson Post Biathlon Competition conducted on
25 April 2002; University of North Texas, Bachelor of Science Degree, dated
11 August 2001; Headquarters, U.S. Army Reserve Personnel Command,
St. Louis, Missouri, Orders R-10-206559, dated 16 October 2002; Headquarters, 423rd Transportation Company, Medium Truck, Fort Carson, Colorado, Reassignment Control Number 70-001, dated 11 March 2003; 2 Defense Finance and Accounting Service (DFAS) Forms 702 (Leave and Earnings Statements (LES)) for the months of September 2003 and October 2003; and
2 DD Forms 214 (Certificate of Release or Discharge from Active Duty), both with effective dates of 26 November 2003.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060006173, on 9 November 2006.

2.  The applicant’s military service records contain a DD Form 214, with an effective date of 30 September 1996.  This document shows, in pertinent part, that the applicant served honorably on active duty in the U.S. Navy from
1 August 1989 through 30 September 1996 and that he was credited with completing 7 years and 2 months net active service during this period and 7 days total prior inactive service.

3.  The applicant's military service records show that he enlisted in the U.S. Army Reserve on 27 August 2001 and was ordered to active duty in AGR status for a period of 3 years, effective 4 November 2002.  The applicant was trained in and awarded military occupational specialty (MOS) 75B (Personnel Administrative Specialist), which was later designated MOS 42A (Human Resources Specialist); promoted to the rank of sergeant (SGT/E-5), effective 12 November 2002; and served in Iraq from 19 April 2003 to 12 November 2003.

4.  On 4 November 2003, charges were preferred against the applicant, as follows:  Charge I, willfully disobeying a lawful order from his superior commissioned officer to report to his superior noncommissioned officer on, 28 October 2003, and willfully disobeying a lawful order from his superior commissioned officer not to leave Mosul Airfield, on 28 October 2003; Charge II, resisting arrest by running from a roving patrol, authorized to apprehend the accused, on 28 October 2003; and Charge III, wrongfully violating force protection standards by exiting the Mosul Airfield alone and without the required uniform, individual body armor and Kevlar helmet, which was prejudicial to good order and discipline in the Armed Forces, on 28 October 2003.

5.  On 4 November 2003, the applicant consulted with counsel and voluntarily submitted a request for discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, Chapter 10.  In his request for discharge in lieu of trial by court-martial, the applicant acknowledged, in pertinent part, that he had been afforded the opportunity to consult with an appointed counsel; that counsel had fully advised him of the nature of his rights under the Uniform Code of Military Justice and of the elements of the offense thereto; the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilt; and the maximum permissible punishment if found guilty.  In the request for discharge, the applicant also acknowledged his guilt of a charge against him or of a lesser-included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant also indicated that under no circumstances did he desire further rehabilitation or have a desire to perform further military service.  In addition, he acknowledged that the decision to submit a request for discharge in lieu of trial by court-marital was made of his own free will, he had not been subjected to any coercion whatsoever by any person, and that submission of the request for discharge was his own decision.  The applicant also acknowledged he was advised that he may submit any statements he desired in his own behalf and they would accompany his request for discharge.

6.  The separation authority subsequently approved the applicant’s request for discharge in lieu of trial by court-martial.  The applicant was reduced to the rank of private (PVT/E-1), discharged on 26 November 2003 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and issued an under other than honorable conditions discharge.  The applicant’s records show that he completed 1 year and 23 days net active service during the period under review.

7.  On 13 April 2005, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his under other than honorable conditions discharge. On 16 December 2005, the ADRB determined that the reason for the applicant’s discharge was proper and voted not to change it.  The ADRB also determined that the characterization of service was too harsh and voted to grant relief in the form of an upgrade of characterization of service to fully honorable and to restore the applicant’s grade to sergeant (SGT/E-5).


8.  The applicant was issued a DD Form 214 to show that he was honorably discharged on 26 November 2003, under the provisions of Army Regulation
635-200, Chapter 10, in lieu of trial by court-martial, in the grade of SGT/E-5.  This document also shows a Separation Code of “KFS” and Reentry Code of “4.” This document further shows that he was credited with 1 year and 23 days net active service for this period and 1 year, 2 months, and 7 days total prior inactive service.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense, or offenses, the punishment for which under the Uniform Code of Military Justice (UCMJ) and the manual for courts-martial (MCM) 1998 includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial.  The discharge request may be submitted after court-martial charges are preferred against the Soldier, or where required, after referral, until final action by the court-martial convening authority.

10.  Paragraph 10-2 of Army Regulation 635-200 pertains to personal decision.  It states that commanders will ensure that a Soldier is not coerced into submitting a request for discharge in lieu of trial by court-martial.  The Soldier will be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge.  The Army regulation is silent as to the Soldier electing to take less time to consult with counsel; however, it does allow the Soldier to waive consultation with counsel.

11.  Paragraph 10-3 of Army Regulation 635-200, provides that a request for discharge in lieu of trial by court-martial will be submitted by the Soldier in the format in Figure 10-1.  This paragraph also lists data that will accompany the request for discharge and, in pertinent part, provides for a statement of any reasonable ground for belief that the Soldier is, or was at the time of misconduct, mentally defective, deranged, or abnormal and that, when appropriate, evaluation by a psychiatrist will be included.

12.  Figure 10-1 (Sample format for discharge for the good of the Service) contains a section designated “Purpose” which states, “[t]o be used by the commander exercising general court-martial jurisdiction over you [the Soldier] to determine approval or disapproval of your [the Soldier’s] request for discharge in lieu of trial by court-martial.”  Figure 10-1 also instructs, in pertinent part, that “[s]ubmission of a request for discharge is voluntary.  Failure to provide all or a portion of the requested information may (emphasis added) result in your request being disapproved.”

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time of the applicant's discharge, 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.  This regulation identifies the SPD code of "KFS" as the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time of the applicant's discharge, provides, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned Reentry Eligibility (RE) codes based on their service records or the reason for discharge.  An RE Code of RE-4 applies to a person separated from the last period of service with a non-waivable disqualification and who is ineligible for enlistment.
  
15.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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 AND CONCLUSIONS:

1.  The applicant contends, in effect, that the reason for his discharge should be corrected, his separation orders rescinded, and the bar to his reenlistment removed so that he may be reinstated in the Army and allowed to complete his enlistment in the AGR program or as a Chaplain candidate.  The applicant also contends that his request for discharge was submitted under duress, the request did not correspond to the sample format in the Army regulation and was administratively incorrect, he was not allowed to indicate on the request that documents in his own behalf were accompanying his request for discharge, the request did not include the written statement of the combat stress control psychiatrist, and he was not afforded a full 72 hours to reflect on the wisdom of his decision.  The applicant further contends that the DD Form 214 issued as a result of the review conducted by the ADRB does not reflect all of his creditable military service.
2.  The applicant’s DD Form 214, with an effective date of 26 November 2003, shows that he was credited with 1 year and 23 days net active service for the period under review and credited with 1 year, 2 months, and 7 days total prior inactive service.  In addition, the applicant’s DD Form 214, documenting the period from 1 August 1989 through 30 September 1996, shows that he was credited with completing 7 years and 2 months net active service during this period and 7 days total prior inactive service; however, this prior military service is not reflected in the applicant’s DD Form 214, with an effective date of
26 November 2003.  Therefore, the applicant is entitled to correction of his discharge document to show this creditable prior military service.

3.  The evidence of record shows the applicant acknowledged that his decision to submit a request for discharge in lieu of trial by court-marital was made of his own free will, he had not been subjected to any coercion whatsoever by any person, and that submission of the request for discharge was his own decision.  The evidence of record also shows that the applicant acknowledged he was advised that he may submit any statements he desired in his own behalf and they would accompany his request for discharge.  Therefore, he provides insufficient evidence to support his claim that he was not allowed to submit statements in his own behalf that would accompany his request for discharge.

4.  The applicant contends that he visited combat stress control psychiatrist on 26 October 2003 and was admitted to combat stress control for 3 days.  The applicant provides a copy of a DA Form 3822-R (Report of Mental Status Evaluation), dated 26 September 2003, that shows the psychiatrist reported the applicant had no evidence of a major psychiatric disorder or personality defect, at that time.  However the applicant fails to provide a copy of a DA Form 3822-R or any written report pertaining to his visit to combat stress control in October 2003, and the applicant’s military service records are absent any such report. Therefore, in the absence of documentary evidence, there is insufficient evidence to support the applicant’s claim that the separation authority’s decision concerning his request for discharge was biased.

5.  The evidence of record also shows that, at the time, the applicant was serving in the grade of sergeant (E-5) in MOS 42A (Human Resources Specialist).  Thus it is reasonable to conclude that the applicant was capable of utilizing the sample format in the governing Army regulation to ensure his request for discharge in lieu of trial by court-martial corresponded with the sample format.  Nonetheless, the evidence of record shows that failure of the Soldier to provide all or a portion of the requested information in the sample request for discharge in lieu of court-martial was not, in and of itself, a basis for the request being disapproved.

6.  The evidence of record shows that the applicant voluntarily submitted his request for discharge in lieu of trial by court-martial and that he was afforded the opportunity to consult with an appointed counsel.  The Board acknowledges that the name of another Soldier appears on the signed statement that document’s the legal advice provided by the captain serving as defense counsel.  However, the Board also notes that the defense counsel’s signed statement appears immediately below the applicant’s signature that the applicant placed on his voluntary request for discharge in lieu of court-martial.  Thus, it is reasonable to conclude that, although the statement contains the name of another Soldier, it was merely a result of a clerical error that occurred in a combat environment and does not, in and of itself, indicate that the applicant was not properly advised of the basis for his contemplated court-martial, maximum permissible punishment, or the possible effects of discharge under other than honorable conditions, if the request is approved.  In fact, in his application to this Board, the applicant does not dispute that he was provided legal counsel by the captain serving as defense counsel who signed the statement that appears on his request for discharge. Thus, in view of the foregoing, this administrative error is deemed harmless.

7.  The evidence of record shows that a Soldier will be given a reasonable time (not less than 72 hours) to consult with legal counsel and to consider the wisdom of submitting a request for discharge in lieu of trial by court-martial. There is no evidence, and the applicant has provided insufficient evidence, to show that his unit expedited efforts and coerced him into signing the request for discharge, nor has he provided evidence that he was required to make an immediate decision or that his command led him to believe he had to make a decision immediately after charges were read and in less than 72 hours.  Additionally, there is no evidence, and the applicant has provided none, to show that he asked for more time to make his decision and was denied additional time. In fact, the evidence of record shows that the applicant consulted with legal counsel and then voluntarily submitted his request for discharge, of his own volition, on 4 November 2003.

8.  In view of all of the foregoing, the applicant provides insufficient evidence in support of his claim that his request for discharge in lieu of trial by court-martial was submitted under coercion or duress, that his request for discharge was invalid because it was administratively incorrect, that he was not allowed to submit accompanying statements in his own behalf for consideration by the GCMCA, or that he was not afforded sufficient time to reflect on the wisdom of his decision.

9.  The evidence of record shows that the applicant’s voluntary request for discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, was in accordance with regulatory authority in effect at the time.  In addition, the evidence of record shows that the ADRB affirmed that the reason for the applicant’s discharge was proper.  The evidence of record also shows that the SPD and RE Codes shown on the applicant’s DD Form 214 are proper and correct.  Thus, the applicant is not entitled to correction of his records to reflect a change to the reason for his discharge, removal of the bar to his reenlistment, or rescission of his separation orders.  Therefore, the applicant is not entitled to reinstatement into the U.S. Army or the Army Guard/Reserve program as a Chaplain candidate.

10.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

11.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___LDS_  ___ERM__  ___RJF_  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20060006173, dated 9 November 2006.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the following corrections to the applicant's DD Form 214:

	a.  Item 12d.  Total Prior Active Service
			 Delete:  "00  00  00"
			 Add:      "07  02  00";

	b.  Item 12e.	Total Prior Inactive Service
			 Delete:  "01  02  07"
			 Add:      "01  02  14"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a change to the reason for his discharge, removal of the bar to his reenlistment, rescission of his separation orders, and reinstatement into the U.S. Army or Army Guard/Reserve program.




____Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000992
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/07
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
20031126
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
In Lieu of Trial by Court-Martial
BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.