IN THE CASE OF:	  

		BOARD DATE:	  9 April 2010

		DOCKET NUMBER:  AR20090017545 


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 his discharge under other than honorable conditions be upgraded to either an honorable or general discharge.

2.  The applicant states, in effect, that his discharge should be upgraded because of a lack of due process in his case because he had inadequate representation, all information was not provided to him at the time, and because the charges against him were inadequate and false.  

3.  The applicant provides a two-page letter explaining his request.

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 serving as a U.S. Army Reserve first lieutenant on active duty in Bosnia on 4 January 2004, when charges were preferred against him for attempted sodomy, failure to obey a lawful order from a superior commissioned officer (colonel), exposing his genitals to a female and soliciting sex from her, sexually harassing a female specialist, engaging in conduct unbecoming an officer by exposing his genitals, and knowingly fraternizing with a specialist. 

3.  The facts and circumstances surrounding his administrative discharge indicate that on 20 January 2004, after consulting with defense counsel, the applicant voluntarily tendered his resignation for the good of the service in lieu of trial by a general court-martial or appearance before a board of officers, under the provisions of Army Regulation (AR) 600-8-24.  The chain of command recommended approval of his request with an under other than honorable conditions discharge.

4.  The Department of the Army Ad Hoc Review Board recommended acceptance of the applicant’s request and recommended that he be discharged under other than honorable conditions.

5.  On 9 March 2004, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Ad Hoc Review Board and directed that the applicant be discharged under other than honorable conditions.

6.  Accordingly, he was discharged under other than honorable conditions at Fort McCoy, Wisconsin on 4 April 2004, under the provisions of Army Regulation 
600-8-24, paragraph 3-13, in lieu of trial by court-martial.  He had served 8 months and 10 days of active service during the period under review.

7.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 19 September 2006 citing essentially the same reasons that he is citing to this Board.  After reviewing all of the applicant’s records and the issues he submitted, the ADRB determined that the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable or general discharge.  The ADRB denied his request on 2 July 2007.

8.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of 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.  An officer separated under this paragraph normally receives characterization of service of under other than honorable conditions.  An officer who resigns for the good of the service (regardless of characterization) is barred from rights under laws administered by the Department of Veterans Affairs based on the period from which the officer resigned.

9.  Army Regulation 600-8-24, paragraph 1-22a, 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.

10.  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 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 contentions that he was not provided adequate counsel and that the charges against him were false have been considered and found to lack merit.  After being afforded the opportunity to assert his innocence before a trial by court-martial and after consulting with defense counsel, he voluntarily submitted his resignation in lieu of trial by general court-martial in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

2.  Additionally, he has not provided sufficiently mitigating evidence to suggest that he did not receive adequate counsel or that the charges against him were false.

3.  Therefore, it must be presumed that the applicant’s voluntary request for resignation for the good of the service, to avoid trial by general court-martial, was administratively correct and in conformance with applicable regulations with no violations of any of the applicant’s rights.

4.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances given the seriousness of the charges against him at the time.

5.  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.
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)                                         AR20090017545



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ABCMR Record of Proceedings (cont)                                         AR20090017545



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