IN THE CASE OF:	  

		BOARD DATE:	  5 March 2009

		DOCKET NUMBER:  AR20080017929 


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, in effect, reconsideration of her earlier petition for an upgrade of her under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states, in effect, that although she may have made it appear that her first request for an upgrade of her discharge was based solely on her desire to receive Department of Veterans Affairs (VA) benefits, the basis for her upgrade request is that her discharge was unjust.  

3.  The applicant provides a self-authored statement with an enclosed Article 15 appeal packet. 

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 AR20080001783, on 24 April 2008.  

2.  The applicant provides a self-authored statement containing a new argument in support of her previous request that requires reconsideration.  

3.  During its original review of the case, the Board determined the applicant's discharge processing was accomplished in accordance with the applicable law and regulation, and that her UOTHC discharge was commensurate with the authority for her discharge.  
4.  The Board further found that although the applicant's record was void of the facts and circumstances surrounding the misconduct that led to her discharge, she had failed to provide any evidence that substantiated her claim that her discharge was unjust.  

5.  In the applicant’s self authored statement, she asks why her record contains evidence of punishment but no appeal and states that someone should be held responsible for the missing documents from her military records.  She further states that her military records are doing her an injustice and remain a stressor in her life.  She claims to have more than 8 years of honorable service and there is no evidence supporting the UOTHC discharge she received.  She claims that being accused of a crime has caused her emotional stress in her life because it has no reflection on her true character.  She also provides documents she indicates are from an Article 15 appeal packet.  

6.  The applicant's record shows that she enlisted in the Regular Army and entered active duty on 25 November 1986.  It further shows that she was trained in, awarded, and served in military occupational specialty (MOS) 91C (Practical Nurse), and that she attained the rank of sergeant (SGT) on 1 September 1992, and that this is the highest rank she attained while serving on active duty.  

7.  On 12 April 1995, while she was serving as a SGT at Madigan Army Medical Center (MAMC), Tacoma, Washington, the applicant was notified that her troop commander was considering whether she should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:  for stealing U.S. currency, of a value of $1,000.00, the property of another Soldier on 31 December 1994; for behaving with disrespect towards a superior commissioned officer on 23 March 1995; and for failing to go at the time prescribed to her appointed place of duty on 6 April 1995.

8.  On 17 April 1995, the applicant elected not to demand a trial by court-martial, and instead chose for the matter to be handled by her troop commander at a closed hearing.  She also elected to request a person speak on her behalf and indicated she would present matters in defense, mitigation, and/or extenuation in person.  Subsequent to the hearing, the applicant’s troop commander imposed the punishment of reduction to specialist (SPC) and 30 days of extra duty.  The troop commander directed the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the performance portion of the applicant's Official Military Personnel File (OMPF).  

9.  On 19 April 1995, the applicant appealed the punishment and submitted additional matters which included all the documents she provided with her application and some additional counseling statements that she did not include.  

10.  On 27 April 1995, a Judge Advocate General (JAG) attorney considered the applicant's appeal and opined that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportional to the offenses committed.  

11.  On 27 April 1995, the appellate authority, the commander of MAMC, a major general, after considering all matters presented in appeal, denied the applicant's appeal.  

12.  The applicant's record is void of a separation packet containing the 
specific facts and circumstances surrounding the applicant's discharge.  The record does contain the approval document from the separation authority, dated 
29 November 1995, which confirms the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by 
court-martial was approved and that she would receive an UOTHC discharge.  

13.  The applicant's record also contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that indentifies the authority and reason for the applicant's discharge.  This document confirms the applicant was separated under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, and that she received an UOTHC discharge.  

14.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-16d (4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  Paragraph 3-18 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  In addition, it states that the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence.  

15.  Paragraph 3-28 of the military justice regulation provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 trial by court-martial. An UOTHC discharge is normally appropriate for members separated under these provisions.  The separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record of service during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her discharge was unjust because her record did not include her Article 15 appeal packet was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant waived her right to a trial by court-martial, opted for a closed hearing, and requested the opportunity to present matters in rebuttal at the hearing.  After considering the available evidence, the applicant's troop commander found her guilty of the alleged misconduct.  The Article 15 was reviewed by a JAG representative, who opined the proceedings had been conducted in accordance with the law and regulation, and that the punishment imposed was not unjust or disproportionate to the offenses committed.  Based on a complete review of entire record and all matters and documents submitted on appeal, which included those now presented by the applicant with her reconsideration request, denied the applicant's appeal.  

3.  The evidence confirms the Article 15 proceedings were accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the process.  

4.  The applicant was granted and took advantage of all appellate rights, and her entire appeal packet was considered by the JAG representative and the appellate authority during the appellate review of the Article 15.  As a result, there was no error or injustice related to this unrelated Article 15 process that would have impacted the applicant's final discharge.  

5.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

6.  The applicant’s DD Form 214 confirms she was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by 
court-martial.  In connection with such a discharge, she was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, she was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, she would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  



7.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and her record was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time, or to support an upgrade at this time.  There is no evidence that the offenses committed by the applicant that resulted in the court-martial charge(s) that led to her discharge request and ultimate UOTHC discharge were the same as those for which she accepted the Article 15 in question and/or that this Article 15 was in error or unjust.  As a result, the new evidence and argument provided by the applicant is not sufficiently compelling to support granting the requested relief.  

8.  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 this requirement or that would support amending the original Board decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20080001783, dated 24 April 2008.  




      _______ _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)                                         AR20080017929



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ABCMR Record of Proceedings (cont)                                         AR20080017929



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