IN THE CASE OF:	  

		BOARD DATE:	  1 JULY 2010

		DOCKET NUMBER:  AR20100000101 


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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge.

2.  The applicant states his military record is not in error; however, he just wants an upgrade.  He was discharged from the military for acts that he committed against a friend, not on military grounds.

3.  The applicant did not provide any additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090011934 on 3 December 2009.

2.  The applicant did not submit any new evidence, but he submitted a new argument which was not previously considered by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  His records show he enlisted in the Regular Army on 31 January 2002 and held military occupational specialty 13E (Field Artillery Surveyor).  The highest rank/grade he attained during his military service was private first class/E-3.  He was awarded the Global War on Terrorism Service Medal, Army Service Ribbon, and Parachutist Badge.  He was assigned to the 1st Battalion, 321st Field Artillery, Fort Bragg, NC.

4.  His records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 1 October 2003, for making a false official statement.  His punishment consisted of a suspended reduction, a suspended forfeiture of pay, and restriction.

	b.  on 12 February 2004, for making another false official statement.  His punishment consisted of a reduction to private/E-2, a forfeiture of $312.00 pay, and 14 days of restriction and extra duty.

	c.  on 19 April 2004, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private/E-1, a suspended forfeiture of pay, and 45 days of restriction and extra duty.

5.  On 10 June 2004, a criminal investigation was initiated against the applicant based on a request from his immediate commander.  The preliminary investigation disclosed the applicant stole another Soldier's debit card and paid for several of his own personal financial obligations.

6.  On 3 August 2004, his command preferred court-martial charges against him for 21 specifications of stealing currency on divers occasions.

7.  On 1 October 2004, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, he acknowledged he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

9.  On 1 October 2004, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.

10.  On 22 October 2004, he was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 8 months, and 22 days of creditable active military service.

11.  On 9 February 2006, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

12.  On 23 April 2009, the applicant appeared in person before his scheduled ADRB personal appearance hearing in Atlanta, GA.  However, the ADRB again denied his request for an upgrade.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7b, 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 contends that his discharge should be upgraded.

2.  His argument that his offense did not occur on military grounds lacks merit.  He violated the UCMJ and stole monies from another Soldier.  Accordingly, court-martial charges were preferred against him for larceny.

3.  He was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgraded 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 to amend the decision of the ABCMR set forth in Docket Number AR20090011934, dated 3 December 2009.



      _______ _  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)                                         AR20100000101



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)