IN THE CASE OF:	  

		BOARD DATE:	       24 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090004984 


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, upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge and issuance of a General Discharge Certificate (DD Form 257A).

2.  The applicant states, in effect, that the DD Form 214 (Certificate of Release or Discharge from Active Duty) he received upon separation on 14 October 2003 shows his characterization of service as under other than honorable conditions.  He states that he was told that if he resigned his commission, he would receive a characterization of service of under honorable conditions.  

3.  The applicant provides a copy of a message from the Commander of the U.S. Army Personnel Command (PERSCOM), Alexandria, VA to the Commander of 1st Personnel Command (1st PERSCOM), subject: Resignation for the Good of the Service, dated 14 January 2002, in support of his 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.  On 27 May 2000, the applicant was commissioned as an officer in the U.S. Army Reserve (USAR) in the rank/grade of second lieutenant (2LT)/O-1.  He was commissioned as a Field Artillery officer and he successfully completed the Field Artillery Officer Basic Course.

3.  On 13 December 2000, the applicant was assigned to B Battery, 6th Battalion, 37th Field Artillery Regiment, Division Artillery, 2nd Infantry Division in the Republic of Korea.

4.  On 13 September 2001, the applicant's company commander stated that an investigation revealed his misconduct included writing checks with insufficient funds in his personal checking account, soliciting and accepting money from enlisted Soldiers, and allowing noncommissioned officers to purchase alcoholic beverages on his personal account at a local private establishment.  The company commander recommended the applicant receive a general-level Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ).  

5.  On 12 October 2001, the company and intermediate commanders recommended trial by general court-martial. 

6.  On 12 October 2001, court-martial charges were preferred against the applicant under the provisions of the UCMJ.  He was charged with violation of Article 92, UCMJ for five specifications of wrongfully borrowing money from enlisted subordinate Soldiers; violation of Article 133, UCMJ of one specification of indebtedness to a private business and failing to pay said debt; and for violation of Article 134, UCMJ for failing to maintain sufficient funds in his personal checking account when 19 checks were presented for payment.  

7.  On 15 October 2001, the general court-martial convening authority appointed a field grade officer as the Article 32, UCMJ investigating officer who was responsible for conducting a thorough and impartial investigation in the truth of the allegations, asked to consider the correctness and the form of the charges, and to make recommendations as to the disposition of the charges in the interest of justice and discipline. 

8.  On 26 October 2001, the applicant knowingly, voluntarily, and informedly waived his right to an Article 32 investigation into the charges and specifications 
preferred against him on 12 October 2001.  The applicant acknowledged that his defense counsel advised him that he had the right to a full investigation under the provisions of Article 32, UCMJ.  He acknowledged that he understood that an impartial investigating officer who would make a disposition recommendation would conduct the investigation.  He further acknowledged that at the hearing he would be entitled to be present, to be represented by qualified counsel, to confront and cross-examine the witnesses against him, and to present such evidence as he desired for the investigating officer's consideration.  He stated that the waiver was in his personal best interest. 

9.  On 26 October 2001, the applicant submitted his voluntary request for resignation for the good of the service in lieu of trial by general court-martial.  He stated he did not desire to appear before a court-martial or a board of officers.  He stated that he had not been subjected to coercion and that he had been advised of and understood the implications of the resignation for the good of the service.  He acknowledged that he met with qualified legal counsel, and that he had been afforded opportunities to present matters of explanation, mitigation, or defense.  He applicant acknowledged that he elected to remain silent.  He stated that his resignation, if accepted, could result in a discharge under other than honorable conditions and that only Headquarters, Department of the Army (HQDA) could withdraw his resignation. 

10.  In his request for resignation, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life because of his discharge. 

11.  On 29 October 2001, the applicant's company and intermediate commanders recommended approval of the applicant's resignation for the good of the service in lieu of trial by court-martial with an other than honorable characterization of service.

12.  On 7 November 2001, the commanding general, 2nd Infantry Division, recommended the applicant's request for resignation be approved and that he be separated with an "other than honorable discharge." 

13.  On 3 January 2002, the appropriate DA Secretarial authority accepted and approved the applicant's resignation.

14.  On 14 January 2002, discharge instructions were sent to the applicant's general court-martial convening authority directing the discharge be accomplished within 21 days of notification.  The type discharge directed was a general, under honorable conditions discharge.

15.  On 24 January 2002, the general court-martial convening authority requested the DA Secretarial authority revoke the earlier decision because of additional allegations of misconduct that were discovered after the applicant submitted his resignation request.

16.  On 31 January 2002, the DA Secretarial authority held in abeyance his decision on the applicant's resignation.  

17.  A general court-martial was convened that found the applicant guilty of failing to go at the time prescribed to his appointed place of duty, willfully disobeying a superior officer's order, violating a lawful general regulation by borrowing money from five subordinate Soldiers, two specifications of larceny (stealing personal checks from a junior commissioned officer), one specification of forgery (forging the stolen check), and dishonorably failing to maintain sufficient funds in his checking account for the payment of checks upon their presentation.

18.  On 10 April 2002, the applicant's sentence was adjudged.  The sentence consisted of forfeiture of all pay and allowances, confinement for 18 months, and dismissal from the service. 

19.  On 2 July 2002, the general court-martial convening authority approved only so much of the sentence that provided for dismissal and forfeiture of $1,754.00 pay per month for six months.

20.  On 19 March 2003, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  Thereafter, the appropriate Secretarial authority executed the court-martial sentence.  

21.  On 2 October 2003, HQDA, General Court-Martial Order Number 14, dated 2 October 2003, dismissed the applicant as a commissioned officer of the U.S. Army effective 14 October 2003.

22.  On 14 October 2003, the applicant was dismissed from the service with an under other than honorable conditions discharge.  The separation authority cited on his DD Form 214 is Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17 and the narrative reason for separation was court-martial.  Item 12c (Record of Service – Net Active Service This Period) shows he had 3 years, 4 months, and 18 days of net active service.  Item 18 (Remarks) shows he had 546 days in excess leave status, and that he had not completed his first full term of service. 

23.  Army Regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel.  Paragraph 3-13 provides in pertinent part that an officer may submit a resignation for the good of the service in lieu of general court-martial when court-martial charges have been preferred against the officer with a view toward trial by general court-martial.  A request for discharge does not preclude or suspend procedures.  Court-martial proceedings may continue until action by the convening authority on the findings and sentence of the court.  Further, a convening authority will not take action on a case until the Secretary of the Army or delegate acts on the officer's resignation request.  An officer separated under this paragraph normally received a characterization of service of under other than honorable conditions.  

24.  Army Regulation 600-8-24 provides, in pertinent part, that a U.S. Army Reserve officer convicted and sentenced to dismissal as a result of a general court-martial proceeding will be released from active duty pending completion of the appellate review and placed on excess leave. 

25.  Army Regulation 600-8-24, paragraph 1-22b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to officers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions is normally appropriate when an officer submits an unqualified resignation under circumstances involving misconduct, is discharged for physical disability resulting from intentional misconduct, willful neglect, or which was incurred during a period of unauthorized absence, or is discharged for the final revocation of a security clearance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be changed to a general, under honorable conditions discharge with issuance of a General Discharge Certificate.  

2.  The applicant voluntarily requested resignation in lieu of court-martial and it was approved at the secretariat level within Department of the Army.  However, the applicant failed to state in his application that the general court-martial convening authority determined that there were additional charges added to the initial court-martial charge sheet.  The additional charges were for incidents that occurred after the date of the applicant's request for resignation.  

3.  As the applicant continued with his misconduct, all triable offenses under the UCMJ, the chain of command up to the general court-martial convening authority determined it was in the best interest of the Army to proceed with the court-martial charges with the additional charges and specifications included.

4.  The applicant's conduct while a commissioned officer of the U.S. Army was not in keeping with the good order and discipline of its officer corps.  The evidence of record shows the applicant did not properly handle his personal finances that directly resulted in his writing personal checks with insufficient funds available when presented for payment.  He was tried and found guilty of larceny.  His conduct was found to be wanting for he repeatedly violated general regulations and orders by taking money from subordinate enlisted Soldiers.  He had no respect for authority for he knowingly violated the orders of his superior commissioned officers.  As such, his conduct does not meet acceptable standards of conduct of officers in the Armed Forces.

5.  The type of discharge directed was appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

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 has failed to submit evidence that would satisfy that requirement.

7.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general discharge. 

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)                                         AR20090004984



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004984



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1