IN THE CASE OF:
BOARD DATE: 11 December 2008
DOCKET NUMBER: AR20080015452
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 under other than honorable conditions discharge be upgraded to honorable.
2. The applicant states that he had over 20 years of service without incident. He states that he had three previous honorable discharges. He contends that he took bad advice from his counsel on a matter that he felt was winnable; however, his counsel did not want to pursue his case. He would like his discharge upgraded in order to serve again in the future.
3. The applicant did not provide additional documentary evidence in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant had prior honorable service in the U.S. Navy and the Army National Guard. On 30 October 1998, the applicant enlisted in the Regular Army and served honorably until 15 August 2001 when he was discharged to accept a commission.
2. The specific facts and circumstances leading to the applicant's discharge were not contained in his official record maintained on the Integrated Personnel Electronic Records Management System. The background information contained in this Record of Proceedings was gleaned from the Army Discharge Review Board (ADRB) Case Report and Directive (AR20070013566, dated 22 August 2008). The applicant's official record shows that on 16 August 2001 the applicant was charged with intent to deceive, wrongfully and dishonorably present another student's work as his own on 1 March 2006, and wrongfully and without authority wear unauthorized insignia (Special Forces Tab, Naval Special Warfare Insignia, Military Freefall Parachutist Badge, Parachutist Badge with Combat Jump Device Two Jumps, Aviator Badge, Former War Time Service, and the Noncommissioned Officer Professional Development Ribbon with Numeral 2).
3. On 23 October 2006, the applicant voluntarily tendered his resignation from the service under the provisions of chapter 3, Army Regulation 600-8-24 (Officer Transfers and Discharges), for the good of the service in lieu of trial by court-martial. The chain of command recommended approval of the resignation with the issuance of an under other than honorable conditions discharge.
4. On 9 February 2007, the Ad Hoc Review Board recommended that the applicant's resignation be accepted with the issuance of an under other than honorable conditions discharge.
5. On 12 September 2007, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Ad Hoc Review Board and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.
6. On 21 September 2007, the applicant was discharged under the provisions of Army Regulation 600-8-24, paragraph 3-13, for the good of the service in lieu of trial by court-martial. His service was characterized as under other than honorable conditions.
7. Army Regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel. Chapter 3, paragraph 3-13, outlines the rules for processing resignations for the good of the service in lieu of trial by a general court-martial.
8. On 22 August 2008, the ADRB considered the applicant's request for an upgrade of his discharge and denied his request.
DISCUSSION AND CONCLUSIONS:
1. The available evidence of record shows the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. After consulting with counsel, the applicant voluntarily requested resignation in lieu of trial by a general court-martial.
2. The appropriate authority accepted the applicant's resignation and approved his discharge in accordance with Army regulations. In the absence of any contrary evidence, administrative regularity is presumed in the discharge process.
3. The applicant's contentions were noted; however, he failed to provide any mitigating evidence to support his contention that he took the bad advice of counsel and did not pursue a court-martial. He also did not provide any evidence in support of his contention that his case was winnable at court-martial.
4. The ADRB reviewed the applicant's case and any evidence that he submitted in mitigation and determined that he was properly and equitably discharged.
5. Given the above, the applicant's overall quality of service was diminished by his misconduct and he has not provided any mitigating evidence to show either an error or injustice occurred in his record. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement.
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.
XXX
_________________________
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) AR20080015452
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080015452
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