IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090015311 


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 her discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* the Army Discharge Review Board (ADRB) voted 5-0 to deny her initial request for a discharge upgrade on 10 October 2008
* she made a personal appearance before the ADRB on 9 June 2009 and the board voted 3-2 to deny her request for a discharge upgrade
* she is pursuing this request in the interests of her children and her own good name
* her son and daughter are descendants of men who served in the Army since the nineteenth century
* her single misstep in an otherwise exemplary military career was to make a false statement in support of a compassionate reassignment
* the trigger for her action was a case of stalking by a fellow officer which she was not able to resolve through the chain of command and she feared for her personal safety
* she regrets this action
* as evidenced on her Officer Record Brief she was consistently rated as one of the best young officers in the Army
* she had a spotless disciplinary record and excellent Officer Evaluation Reports
* she made a false statement in support of her request for a compassionate reassignment because when she attempted to end her engagement with a fellow Army Soldier he was not amenable and began a threatening campaign to reverse her career
* she does not seek to absolve herself from the personal responsibility associated with her poor judgment
*  the conduct of her ex-fiancé as a contributing factor should not be overlooked
* in a sworn statement the ex-fiancé repeatedly admits that he unlawfully reviewed her emails in order to obtain personal information about her and he elicited help of friends in her unit to "check up" on her and he threatened her personally
* in 2003 she began a civilian career with a major pharmaceutical company
* in January 2003 she was contacted by the academic department of West Point for a teaching position
* in September 2007 she was contacted by a casting company hired by the Army to create a commercial depicting the successful careers of Army veterans and the Army had identified her as a prime candidate to participate in the proposed series
* since her discharge she has been an outstanding example of how the Army can prepare an individual for a productive civilian career    

3.  The applicant provides 13 enclosures outlined in a letter, dated 17 August 2009, from her counsel in support of her 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 was appointed a Reserve commissioned officer in the rank of second lieutenant on 10 May 1996.  She was ordered to active duty on 
14 August 1996.  She was promoted to first lieutenant on 31 May 1998 and promoted to captain on 1 June 2000.  She served as a health services administration officer. 

3.  On 6 May 2002, charges were preferred against the applicant for:

* three specifications of signing an official document (request for compassionate reassignment) with intent to deceive
* three specifications of larceny
* preparing and presenting a Dislocation Allowance (DLA) voucher, a Temporary Lodging Expense (TLE) voucher, and a DD Form 1351-2 (Travel Voucher or Subvoucher) for payment which claims were false
* wrongfully and dishonorably representing (verbally) false statements to her chain of command while applying for a compassionate reassignment
* wrongfully and dishonorably submitting a fraudulent compassionate reassignment packet
* wrongfully and dishonorably submitting a DLA voucher, a TLE voucher, and a DD  Form 1351-2  for payment
* with intent to defraud falsely pretending to require a compassionate reassignment to obtain an airline ticket, shipment of her vehicle to her new duty station, shipment of her hold baggage to her new duty station, and shipment of her household goods to her new duty station      

4.  On 17 June 2002, the applicant consulted with counsel and submitted a request for resignation under the provisions of Army Regulation 600-8-24, chapter 3, paragraph 3-13 for the good of the service in lieu of a general court-martial.  In her request she acknowledged that she had not been subject to coercion with respect to the resignation and that she had been advised of and fully understood the implications of the action.  She also acknowledged that she understood that her resignation, if accepted, would be considered as being under other than honorable conditions.  Her chain of command recommended approval of her resignation in lieu of trial by a general court-martial.  

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 14 August 2002, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board, accepted the applicant's resignation, and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  

6.  On 3 September 2002, 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.  On 19 October 2008, the ADRB voted 5-0 to deny the applicant's request for an honorable discharge.
8.  The applicant was granted a personal appearance before the ADRB and on 8 June 2009, the ADRB voted 3-2 to deny the applicant's request for an honorable discharge.
9.  Army Regulation 600-8-24 (Officer Transfers and Discharges) 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.

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
1-22a, provides an officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance under DOD Directive (DODD) 5200.2-R and Army Regulation 380-67 for reasons that do not involve acts of misconduct, for an officer.  Department of Defense (DD) Form 256A (Honorable Discharge Certificate) will be furnished to a discharged officer; however, a certificate is not issued when an officer is released from active duty.  When the separation is based solely on pre-service activities, substandard performance of duty, or final revocation of a security clearance under DODD 5200.2–R and Army Regulation 380–67 for reasons that do not involve acts of misconduct, it will be Honorable.

11.  Army Regulation 600-8-24, paragraph 1-22b, provides an officer will normally receive an Under Honorable Conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer:  (1) Submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct; (2) Is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate; (3) Is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence;  or (4) Is discharged for the final revocation of a security clearance under DODD 5200.2-R and Army Regulation 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge Under Other Than Honorable Conditions is appropriate.


DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant, a captain, 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.  Her request was approved and she was discharged under other than honorable conditions on 3 September 2002.  

2.  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 she understood that she might receive a discharge under other than honorable conditions and that she understood the effects of such a discharge.  She 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 there from.

4.  The applicant's military career and her accomplishments were noted.  However, her record of service included serious offenses for which general court-martial charges were preferred.  As a result, her record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.
5.  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)                                         AR20090015311



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ABCMR Record of Proceedings (cont)                                         AR20090015311



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