IN THE CASE OF:	  

	BOARD DATE:	  11 December 2008

	DOCKET NUMBER:  AR20080015293 


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 that his discharge under other than honorable conditions be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, that he wants his discharge upgraded so he can better provide for his family.  He admits that he made one mistake in his life and regrets it.  He was having problems during the war.  He took his problems to his chain of command, and even attempted suicide.  When his wife told him that she wanted a divorce, he felt like he no longer had anything to get him through each day.  His problems continued even when he returned to the United States.  He complained of having mood swings for months, being happy, then angry, then crying and wanting to throw something.  His wife and child left him.  His spouse depleted his bank account, overdrawing it by $788.00. He has never been in trouble with the law.  He does not use drugs or alcohol.  His problems lasted for over 2 years.  When he gave his life over to God his problems went away.  It has been 4 years now.  He is a deacon of his church.  He has been remarried for over a year and a half.  He has been at his job for 4 years.  He still needs the Army to help him. 

3.  The applicant provides, in support of his application, copies of a letter to his congressman, photographs of his former spouse with her boyfriend, lists of individuals he had talked to about his problems, list of the things he did to relieve his stress, ten letters of support, two letters and a Waiver of Prosecution from his 

former spouse asking that he not be prosecuted, six certificates for awards, orders awarding him the Driver and Mechanic Badge with Driver-T Bar, two certificates of appreciation, and a training certificate.  All of these enclosures appear to have been prepared in connection with his court-martial.

CONSIDERATION OF EVIDENCE:

1.  On 28 July 1998, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 19K (M1 Armor Crewman).  He served in the Republic of Korea from 29 November 1998 to 28 November 1999, and returned to the United States for duty at Fort Hood, Texas. 

2.  On 1 November 2000, the applicant was promoted to specialist (SPC), pay grade E-4.

3.  On 27 July 2001, the applicant was released from active duty and transferred to the Florida Army National Guard (FLARNG) for duty in Lakeland, Florida.  He had completed 3 years of creditable active duty service.

4.  On 27 July 2002, he was discharged from the FLARNG without personal notice due to expiration of term of service (ETS).  

5.  On 29 October 2002, the applicant enlisted in the Regular Army as an M1 armor Crewman.  He was assigned for duty at Fort Stewart, Georgia.  

6.  General Court-Martial Order Number 17, Headquarters, Fort Stewart, Georgia, dated 17 June 2004, shows that the applicant pled guilty to the charge and specification of rape (Article 120, Uniform Code of Military Justice (UCMJ)) on or about  30 August 2003.  He was found guilty of the charge and specification.  He was sentenced to reduction to pay grade E-1, confinement for 9 years, and a dishonorable discharge.  The sentence was approved and ordered executed, except for that part extending to the dishonorable discharge.

7.  On 29 July 2005, the United States Army Court of Criminal Appeals set aside the findings of guilty of the charge and specification and the sentence as promulgated in General Court-Martial Order 17, dated 17 June 2004.  A rehearing was authorized.

8.  On 22 August 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

10.  The applicant's request for discharge pursuant to the provisions of Army Regulation 635-200, chapter 10, was approved on 6 September 2005 for a discharge under other than honorable conditions.  On 6 September 2005, the convening authority determined that a rehearing was not practicable.  As a result, the charge and its specification were dismissed.

11.  On 24 March 2006, the applicant was discharged accordingly.  He had completed a total of 6 years, 4 months, and 26 days of creditable active military service.

12.  On 15 November 2007, the Army Discharge Review Board determined that the applicant's discharge was proper and equitable and denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Under the UCMJ, the table of maximum punishments allowed for violation of Article 120, for rape includes death, dishonorable discharge, and confinement for life with or without parole.



15.  On 15 October 2003, the applicant's former spouse signed and dated a Waiver of Prosecution, stating that she released the United States Government of any and all liability regarding her then current or future claims of liability that existed or were non-existing at that time.  She further stated that she did not want the United States Government to prosecute the applicant.  

16.  On 15 October 2003, the applicant's former spouse wrote a statement, addressed "To Whom It May Concern," wherein she stated that she had been under a lot of stress since the incident.  She was trying to deal with taking care of her son and starting a new life.  She respectfully requested that all restraining orders pertaining to the applicant be lifted.  She knew what he had done was wrong and would not forgive him, but did not feel that prison and a dishonorable discharge was punishment.  She wanted to settle the matter with him, but not in court.  The person most affected by this matter was their son.  She wanted the applicant to be a part of his son's life and did not want him to be in prison.  

17.  On 4 November 2003, the applicant's former spouse wrote another letter stating that the applicant was a good Soldier.  He had personal issues.  He tried to notify his unit during the war but the problem was overlooked.  He even tried to get help when he returned from the war, but it was again overlooked.  They had personal problems and the incident that occurred was inappropriate, but removing the applicant from the military was not the answer.  He was an outstanding Soldier and would be a great asset to the United States Army.  The applicant and his former spouse were working out their personal issues and she knew that what had happened on 27 August 2003 would never happen again.  She resided in another state and would have very little contact with the applicant. 

18.  The applicant provided ten letters of support, including letters from his former military commander, supervisors, Army recruiter, and comrades in arms, all stating, in essence, that he was a good Soldier, who was highly disciplined and competent individual who should be retained in the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.
3.  The applicant's implied contention that his problems were the proximate cause of his misconduct is not substantiated by any evidence of record.  Furthermore, he has not provided any convincing evidence to support his contention.

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

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X ___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that 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.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080015293



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