IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20090001853 


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, an upgrade of his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded to an honorable discharge based upon previously provided evidence which proved he was innocent of the criminal charges which were brought against him.  The applicant continues that this evidence was in the form of a sworn statement from the person who actually committed the crime.  The applicant states that a copy of the evidence proving his innocence was submitted with his previous application and should be in his file.  The applicant continues that his remaining copy of the evidence was destroyed when his house burned.  The applicant further states that if the evidence is missing from his file, that his discharge should be upgraded based upon his prior service record.  The applicant adds that this is the third time he has applied for a discharge upgrade:  his first packet was incomplete and the second packet was sent to the wrong board.  The applicant concludes that now he has a complete packet being presented to the proper board, he hopes the Army makes the right decision.  

3.  The applicant provides no documentary evidence in support of this application.





CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he completed an honorable period of 8 years, 5 months, and 10 days of active duty service as an enlisted Soldier during the period 23 June 1980 through 2 November 1988.  He was discharged and ordered to active duty as a warrant officer upon completion of the Initial Entry Rotary Wing Course (IERWC).  The applicant held the rank of staff sergeant (SSG)/pay grade E-6 at the time of his transition from the enlisted military personnel category (MPC) to the warrant officer MPC.

3.  On 3 November 1988, the applicant was appointed as an active duty warrant officer one (WO1)/pay grade W-1.  The applicant held the rank of chief warrant officer two (CW2)/pay grade W-2 at the time of his discharge.

4.  DD Form 458 (Charge Sheet), dated 28 December 1994, shows the applicant was charged with violating three Articles of the Uniform Code of Military Justice (UCMJ):

	a.  Charge I, violation of Article 121.  Specification:  stealing a motor vehicle of a value of over $100.00, to wit:  a 1968 Chevrolet Camaro, the property of another warrant officer.

	b.  Charge II, violation of Article 109.  Specification:  willfully and wrongfully cutting up and dismantling a motor vehicle of a value of about $5,000, to wit:  a 1968 Chevrolet Camaro, the property of another warrant officer.
	c.  Charge III, violation of Article 133.  Specification:  With intent to deceive, wrongfully and dishonorably made false statements.

5.  On 28 December 1994, the applicant's company commander recommended the applicant appear before a general court-martial for the aforementioned charges.  The regimental commander concurred with the recommendation and forwarded the request to the brigade commander for further consideration.  The brigade commander directed that an Article 32 investigation be conducted and appointed an investigating officer.  On 29 December 1994, the applicant was informed of the charges against him and of the name(s) of his accuser(s).

6.  The applicant's record contains an undated United States Army Trial Defense Service, Fort Campbell, Kentucky, Memorandum, Subject:  Resignation for the Good of the Service.  This memorandum shows the applicant voluntarily tendered his resignation from the Army for the good of the service under the provisions of Army Regulation 635-120 (Officer Resignation and Discharges), Chapter 5.  The applicant stated that he had not been subjected to coercion with respect to this resignation and he had been advised of and fully understood the implications of this action.  He continued that he had been fully advised and counseled in this matter by his detailed military legal counsel.  The applicant also stated that he had been afforded an opportunity to present matters in explanation, mitigation, or defense of his case and such matters were enclosed.  The applicant also acknowledged he understood that if his resignation was accepted his service could be considered as being under other than honorable conditions.  He further acknowledged he understood that his resignation for the good of the service could be withdrawn only with the approval of Headquarters, Department of the Army.  The applicant authenticated this resignation with his signature and it was witnessed by his appointed military legal counsel.

7.  The applicant's company, battalion, brigade, and division level commanders unanimously recommended approval of the applicant’s resignation for the good of the service with the issuance of an under other than honorable conditions discharge.

8.  The applicant's record contains a Department of the Army, Office of the Assistant Secretary, Arlington, Virginia, Memorandum, dated 23 May 1995, Subject:  Resignation for the Good of the Service.  This memorandum shows approval of the unanimous recommendation of the Department of the Army Ad Hoc Review Board to accept the resignation tendered by the applicant for misconduct, moral or professional dereliction with an under other than honorable conditions discharge.

9.  The applicant's DD Form 214 shows that he was discharged accordingly on 26 July 1995 under the provisions of chapter 5 of Army Regulation 635-120, in lieu of trial by court-martial.

10.  On 22 December 1998, the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) for consideration by the Army Discharge Review Board (ADRB).  Only one page of this document was filed in the applicant's available records.  This document shows the applicant requested to have his discharge under other than honorable conditions upgraded based upon his allegation that he was wrongfully accused of committing a crime.  The applicant contended that he had not resigned because he was guilty, but because he lacked evidence proving his innocence.  The applicant continued that a sworn statement showed he did nothing against either civilian or military law and concluded that had the evidence been available at the time, he would have still been serving on active duty.  The sworn statement to which the applicant referred was not present in his available records for consideration with his current application.

11.  Department of the Army, ADRB, Arlington, Virginia, Letter, dated 21 January 1999, informed the applicant that the ADRB, after careful consideration of his records and all other available evidence, had determined that he was properly and equitably discharged.  Accordingly, the Secretary of the Army directed that the applicant be advised that his request for change in the type and nature of his discharge had been denied.  This letter also advised the applicant that he could appeal the board's decision to the ABCMR, but if he chose to apply to the ABCMR, he must do so within three years of receiving the letter.  A DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, United States Code, Section 1552) was provided as an enclosure with the letter.

12.  Article 32 of the UCMJ provides that no charge or specification may be referred to a general court-martial for trial until a thorough and impartial investi-gation of all the matters set forth therein has been made.  This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.  The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section.  At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused.  If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

13.  Army Regulation 635-120, in effect at the time, implemented the statutory provisions of Title 10 U. S. Code governing officer resignations and discharges and provided policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provided that an officer could submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in paragraph 5-11a(7) (misconduct or moral or professional dereliction) of Army Regulation 635-100 (Personnel Separations - Officer Personnel), prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provided that a resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

14.  Army Regulation 635-100 provided the authority for the separation of commissioned and warrant officers from the Active Army.  Paragraph 1-5 (Discharge Certificates) of this regulation provided that the character of discharge was to be predicated on the officer's behavior and performance of duty while a member of a Military Service.  A commissioned or warrant officer was normally furnished:

	a.  an honorable discharge certificate unless conditions existed as indicated in b and c below, or as directed by the Secretary of the Army.

	b.  a general discharge certificate under honorable conditions when:

		(1).  unqualified resignation in circumstances involving serious misconduct.

		(2).  discharge because of serious misconduct, including misconduct for which punishment has been imposed, which renders the officer unsuitable for further service.

		(3).  discharge for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence.
		(4).  discharge under the Military Personnel Security Program if directed by Headquarters, Department of the Army.

	c.  a dishonorable discharge certificate, warrant officers only, as a result of sentence by a court-martial.

15.  Paragraph 1-6 (Character of service) of Army Regulation 635-100, in effect at the time, provided the criteria outlined in paragraph 1-5 was to be used as guidelines to determine the character of service for commissioned and warrant officers terminating a tour of duty by reason of resignation, discharge, retirement, or release from active duty.  This paragraph also provided that an officer's service would normally be characterized as under honorable conditions or under other than honorable conditions when such a determination was made by a Department of the Army Active Duty Board for officers being release from active duty because of misconduct, moral or professional dereliction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He voluntarily elected to accept a discharge under the provisions of chapter 5 of Army Regulation 635-120 in lieu of appearing before a trial by court-martial.

3.  Although the applicant contends that he had a sworn statement from the person who actually committed the crime which would have exonerated him from guilt, it is not present in his available records and he has failed to provide the statement for consideration by the Board.

4.  Discharges under the provisions of chapter 5 of Army Regulation 635-120 required an admission of guilt to the offenses charged and were voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All require-ments of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.
6.  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 did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090001853



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ABCMR Record of Proceedings (cont)                                         AR20090001853



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