IN THE CASE OF:	  

		BOARD DATE:	       29 October 2009

		DOCKET NUMBER:  AR20090007373 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that item 28 (Narrative Reason for Separation) on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 February 2007 be changed, that he be restored to active duty, and that he be awarded all back pay and allowances.  He also requests that any adverse material related to the charges preferred against the applicant on 
5 April 2006 be removed from his Official Military Personnel File (OMPF).

2.  Counsel states, in effect, that in 2006 the applicant was charged with several violations of the Uniform Code of Military Justice (UCMJ) related to two separate instances.  He contends that the UCMJ violations were based on weak and erroneous evidence that led the applicant to reluctantly resign from the Army and receive a damaging service characterization of other than honorable.  The characterization was erroneous, unjust, and was accordingly upgraded to an honorable discharge by the Army Discharge Review Board (ADRB).  However, the ADRB did not change the narrative reason for separation.   

3.  Counsel indicates that in March 2003 the applicant deployed to Jordan, that during this time the applicant performed his duties as platoon leader exceptionally well, and that his rater remarked that the applicant's platoon was the strongest in the company during validation.  Counsel points out that the applicant's charges stemmed from two instances, one involving the applicant's platoon while deployed to Jordan in the spring of 2003 and another involving one particular evening while the 300th Chemical Company was attending annual training in Rapid City, South Dakota.  In the first instance, after the 300th Chemical Company was informed that they would be returning to the United States they prepared military vehicles and equipment for shipping.  The applicant and his entire company were briefed on the policy regarding the illegality of possessing and shipping war trophies stateside and in May 2003 customs inspected all vehicles and no contraband was found.  Counsel goes on to state that in February 2005 a maintenance supervisor discovered four AK-47 rifles in 
four separate 5-ton military trucks belonging to the 300th Chemical Company, the applicant was immediately informed of the weapons discovery, that he promptly issued a memorandum to the 300th Chemical Company mandating full cooperation with the investigation, and the investigation culminated in charges against the applicant.  

4.  In the second instance, in June 2005 during the time the investigation into the alleged smuggling of war trophies, the 300th Chemical Company attended annual training in Rapid City, South Dakota.  The applicant was the acting company commander at this time and following a formation the first sergeant indicated that Soldiers could go out to one of three local bars provided they were of legal age.  The applicant, unaware that the establishment was a gentleman's club, joined several other Soldiers at this establishment.  The charge sheet alleges that while at this establishment the applicant observed and participated in the purchase of lap dances and otherwise failed to prevent members of his company from purchasing lap dances for female members of his company.

5.  Counsel states that the applicant maintained his innocence throughout both investigations but was ultimately unable to clear his name.  Upon consulting with counsel it was decided that resignation for the good of the service in lieu of court-martial was the applicant's best option.  Counsel points out that there was no forensic evidence tying the applicant to any of the weapons found, that 
18 months went by before a mechanic found the weapons in the truck, and that literally thousands of Soldiers had access to the trucks and could have been responsible for placing the firearms in the truck.  At the time the contraband was discovered, the applicant was the company commander and if he had any involvement in transporting the firearms he would have used this opportunity to remove the weapons which he clearly did not.  Counsel states that out of all Soldiers interviewed only one Soldier alleged that the applicant  took any steps to smuggle weapons and he admitted to lying to interviewing officials in a previous statement.          

6.  Counsel further states that following the incident during the annual training exercise in South Dakota, the applicant's command recommended he be relieved from his command.  In response, the applicant's defense counsel drafted a comprehensive memorandum systematically deconstructing the case against the applicant and offering a comprehensive and compelling argument that the investigating officer had failed to meet his burden of proof under Army Regulation 15-6.  Among other findings, his defense counsel determined that the statements implicating the applicant were inconsistent and contradictory, that they were too weak to warrant charges that he violated the UCMJ, that the event represents an isolated incident that took place during a matter of hours in the applicant's otherwise exceptional career as an officer, and that the applicant's military career was derailed by unfounded charges that were based on circumstantial and inconsistent evidence.

6.  Counsel provides a copy of the ADRB proceedings; orders; an OER; a charge sheet; a polygraph examination report; an 11-page memorandum outlying the counsel's position on the applicant's case; his request for resignation; statements in support of the applicant's request for an honorable discharge; summary of interviews; sworn statements; a character reference letter; and a copy of his DD Form 214 for the period ending 14 February 2007 in support of his application.   

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard and the U.S. Army Reserve (USAR), the applicant was appointed a second lieutenant in the USAR on 21 January 1997.  He was promoted to first lieutenant on 2 August 2003. 

2.  On 5 April 2006, charges were preferred against the applicant for conspiring with noncommissioned officers to ship out of the USCENTCOM area of responsibility for personal retention AK-47 assault rifles (two specifications), disobeying a lawful command, failing to give notice and turn over captured or abandoned property, failing to obey a lawful general regulation, being derelict in the performance of his duties (two specifications), making false official statements (four specifications), and conduct unbecoming an officer (four specifications).     

3.  On 15 June 2006, the applicant consulted with counsel and submitted a request for resignation under the provisions of Army Regulation 600-8-24, chapter 3, for the good of the service in lieu of a general court-martial.  In his request he acknowledged that he had not been subject to coercion with respect to the resignation and that he had been advised of and fully understood the implications of the action.  He also acknowledged that he understood that his resignation, if accepted, would be considered as being under other than honorable conditions.  His chain of command recommended approval of his request.  
4.  The applicant was ordered to active duty on 4 December 2006 for a period of 6 months for UCMJ proceedings.   

5.  The Army Ad Hoc Review Board met and recommended that the applicant's resignation be accepted with issuance of an under other than honorable conditions discharge.  On 4 January 2007, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  It was also directed the entire court-martial proceedings, both findings and sentence, if any, be vacated. 

6.  On 14 February 2007, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-martial.  

7.  Item 25 (Separation Authority) on the applicant's DD Form 214 for the period ending 14 February 2007 shows the entry "AR [Army Regulation] 600-8-24, PARA [paragraph] 3-13."  Item 26 (Separation Code) on this DD Form 214 shows the entry "DFS."  Item 28 on his DD Form 214 shows the entry "IN LIEU OF TRIAL BY COURT-MARTIAL."
8.  The applicant was granted a personal appearance before the ADRB and on 4 November 2008, the ADRB upgraded the applicant's discharge to fully honorable.  The ADRB determined that the characterization of his service was too harsh and thus inequitable when his overall length and quality of service, the circumstances surrounding his misconduct and his post-service accomplishments were taken into consideration.  However, the ADRB found that the reason for discharge was both proper and equitable and voted not to change it. 
9.  A review of the applicant’s OMPF on the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal any documentation pertaining to the charges preferred against the applicant on 5 April 2006.
10.  Paragraph 3-13 of Army Regulation 600-8-24 (Officer Transfers and Discharges) states, in pertinent part, that an officer may submit a resignation for the good of the service in lieu of general court-martial if court-martial charges have been preferred against the officer with a view toward trial by general court-martial.  An officer separated under this paragraph normally receives characterization of service of Under Other Than Honorable Conditions.
11.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "DFS" is "In lieu of trial by court-martial" and the regulatory authority is Army Regulation 600-8-24, paragraph 3-13.  

12.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  Table 2-1 of this Army regulation shows that approved requests, letters, or applications for resignation, relief from active duty, or discharge of commissioned or warrant officers for active Army and USAR or Army National Guard members will be filed in the general administration fiche of the OMPF.  The regulation also states that case files for approved separations (include elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service) will be filed on the general administration fiche of the OMPF. 

13.  Army Regulation 600-8-24 sets forth the basic authority for the separation of officer personnel.  Paragraph 3-13 of that regulation provides, in pertinent part, that an officer may voluntarily {emphasis added} submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant, a first lieutenant, voluntarily tendered a request for resignation under the provisions of Army Regulation 600-8-24, chapter 3, for the good of the service in lieu of a general court-martial.  His request was approved and he was discharged under other than honorable conditions on 14 February 2007.  

2.  Notwithstanding that the ADRB upgraded the applicant's discharge to fully honorable in 2008, but voted not to change his narrative reason for separation, the applicant's voluntary request for separation for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no apparent violations of any of the applicant's rights.    

3.  The applicant acknowledged that he understood that he might receive a discharge under other than honorable conditions and that he understood the effects of such a discharge.  He was a commissioned officer who chose to request an administrative discharge rather than risk the consequences of a trial by court-martial and the punitive discharge and felony conviction that could have resulted therefrom.

4.  The applicant's contentions that his discharge was unjust, as evidenced by the ADRB action to upgrade his discharge to fully honorable, that he should be restored to active duty, and that his record should be cleared of any adverse information related to the incident in question has been noted and found to lack merit.  The applicant had the opportunity to assert his innocence before a trial by court-martial and voluntarily elected not to do so.  The action by the ADRB to upgrade his discharge had nothing to do with the validity of his discharge but more so a matter of equity and compassion under the circumstances presented.

5.  Counsel’s contentions that the charges against the applicant were based upon weak evidence and did not justify the discharge the applicant received were carefully considered.  However, the applicant voluntarily requested discharge for the good of the service fully knowing that if his request was accepted, that he could be discharged under other than honorable conditions.  In doing so, he avoided trial by court-martial and essentially gave up his opportunity to establish his guilt or innocence of the charges against him.  Accordingly,  the applicant's narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's requests.    
6.  Although the applicant's OMPF does not reveal any documentation pertaining to the charges preferred against him on 5 April 2006, according to the governing regulation, applications for resignation and case files for approved separations (ADRB proceedings) should be filed on the OMPF.
7.  In order to justify correction of military records 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.
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)                                         AR20090007373





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ABCMR Record of Proceedings (cont)                                         AR20090007373



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