IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007023 


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, correction of his record to show he is entitled to severance pay and/or retirement pay and removal of court-martial charges. 

2.  The applicant states:

	a.  He requested and received [a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10] with a characterization of service under other than honorable conditions.  His characterization of service was later changed to honorable and his rank was restored to sergeant first class/E-7.  

	b.  He understands the pretrial investigation determination was the charges against him were not valid.  As stated in the [Army Discharge Review Board] findings, a charge under Article 112a, [Uniform Code of Military Justice (UCMJ)] for wrongful use of a controlled substance was invalidated when the Government wrongfully introduced into the discharge process the results of a biochemical test that was part of his Army Substance Abuse Program (ASAP) treatment plan.  This information is limited use information as defined in Army Regulation 600-85 (ASAP), chapter 6.

	c.  Regarding the charge of being absent without leave (AWOL) under Article 86, UCMJ, he was not aware that he signed anything claiming he was AWOL.  He was never AWOL.  He was told the documents he was signing were the approval for [his discharge under Army Regulation 635-200, chapter 10].  As stated in the [ADRB] findings, he received quarterly counseling, an annual Noncommissioned Officer Evaluation Report (NCOER), and participated in a urinalysis during [the period he was allegedly AWOL].  Soldiers who are AWOL for more than 30 days have their pay stopped, and they do not return to their parent unit.  He was never AWOL and his pay was never stopped, which is why there is no known mode of return [as indicated in the ADRB findings].

	d.  He was not asked if he wanted to make a verbal or written statement pertaining to the charges against him.

	e.  Regarding the charge of fraud against the U.S. Government under Article 132, UCMJ, he did not try to defraud the U.S. Government.  The pretrial investigation received copies of a travel claim he filed requesting 6 days of travel pay and meals as a Casualty Assistance Officer.  Finance paid him for 30 days instead of the 6 days he requested.  He made finance aware of the overpayment.  His unit was aware of the overpayment and reviewed his monthly leave and earnings statements before issuing it to him.  His unit was aware that the overpayment had not been deducted from his pay.

	f.  Regarding the charge of larceny under Article 121, UCMJ, he was returning six cartons of cigarettes and some other items to the shopette without a receipt and the shopette claimed he stole them, which is not true.

3.  The applicant provides copies of his original and reissued DD Form 214 (Certificate of Release or Discharge from Active Duty), a DD Form 214 documenting his active duty service in the U.S. Navy (USN), and a letter from the Support Division, Army Review Boards Agency, dated 31 August 2009, informing him of the results of the ADRB's review of his discharge.

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.  After service in the USN and the USN Reserve, the applicant enlisted in the Regular Army on 21 July 1987.  He served in military occupational specialty 91B (Medical Specialist) until he was discharged on 26 March 2002.  He completed 18 years and 12 days of active military service.  

3.  The applicant's record shows he received formal counseling on several occasions during the period October 2000 through May 2001 for poor performance that included:

* dereliction of duties
* failure to repair 
* failure to go to his appointed place of duty
* leaving his appointed place of duty after having reported
* consistent tardiness
* failure to obey lawful orders
* violation of a memorandum for relief for cause
* wrongful use of a controlled substance under Article 112a, UCMJ

4.  On 17 October 2000, the applicant received a relief for cause memorandum notifying him of his relief as the Expert Field Medical Badge (EFMB) Administrative Noncommissioned Officer (NCO) and of impending adverse administrative/disciplinary action.

5.  The applicant's record includes an administrative reprimand, on letterhead from Headquarters, 203rd Support Battalion (Forward).  The administrative reprimand contains the signature block of the battalion commander; however, it is unsigned.  The administrative reprimand was imposed for:

* disobeying a direct order on 5 and 6 October 2000
* absenting himself from the EFMB Tactical Operations Center (TOC) from
7 October to 8 October 2000
* dereliction in the performance of his duties on 14 October 2000

6.  On 13 February 2002, the applicant voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 
635-200.  He acknowledged that four charges under the UCMJ had been preferred against him, at least one of which authorized imposition of a bad conduct discharge.  The charges were:

* violation of Article 86 (AWOL), UCMJ, one specification
* violation of Article 112a (Wrongful Use, Possession, etc., of Controlled Substances), UCMJ, one specification
* violation of Article 121 (Larceny), UCMJ, one specification
* violation of Article 132 (Frauds Against the United States), UCMJ, one specification

7.  The facts and circumstances leading to each charge are not available in the applicant's record.  

8.  The applicant acknowledged he understood the elements of the offenses he was charged with and admitted he was guilty of one or more of the charges or of a lesser included offense which also authorized the imposition of a dishonorable or bad conduct discharge.  

9.  Prior to submitting his request, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  He acknowledged he understood that if his discharge request was 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.  He chose not to submit statements on his own behalf.

10.  On 28 February 2002, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 26 March 2002, the applicant was discharged accordingly.  

11.  On 22 May 2009, the ADRB determined the government introduced a document into the discharge process revealing that the applicant was enrolled in the ASAP for substance abuse, which is limited use information as defined in chapter 6 of Army Regulation 600-85.  Use of this information mandated award of a fully honorable discharge.  Accordingly, the ADRB voted to change the applicant's characterization of service to fully honorable, which entailed restoration of his rank/grade.  However, the ADRB found the narrative reason for separation was fully supported by the record and voted not to change it.  

12.  The ADRB Case Report and Directive noted the applicant's DD Form 214 shows in item 29 (Dates of Time Lost During This Period) 228 days from 
30 March 2001 to 18 November 2001.  However, the ADRB also noted the applicant received and signed an NCOER and participated in a urinalysis during the same period.  

13.  On or about 31 August 2009, the Army Review Boards Agency Support Division provided the applicant with a new DD Form 214 reflecting the change in his characterization of service and restoration of his rank/grade to SFC/E-7.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 1 provides that when separation is ordered, the approved proceedings will be sent to the commander who has the Soldier's records for separation processing per Army Regulation 635-10 (Processing Personnel for Separation).  The original copy of the proceedings will be filed in the permanent section of the Soldier's Military Personnel Records Jacket (MPRJ), per Army Regulation 600-8-104 (Military Personnel Information Management/Records). 

	b.  Chapter 10 of this regulation provides, in pertinent part, 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.

	c.  Chapter 12 of this regulation states a Soldier of the Regular Army who has completed 20, but less than 30, years of active Federal service in the U.S. Armed Forces may, at the discretion of the Secretary of the Army, be retired at his/her request.  The Soldier must have completed all required service obligations at the time of retirement.

15.  The Department of Defense Financial Management Regulation, Volume 7A, Chapter 35, sets forth the basic authority for separation payments.  The regulation states that Military Service members who request separation under regulations established by the Secretary of the Military Service are not eligible for separation pay.  Members who are involuntarily separated may be entitled to severance pay.

16.  Army Regulation 600-8-104 states that for administrative discharge actions approved in the field, all allied documents that set forth details and form a basis for the separation will be filed in the MPRJ.  Case files for approved separations will be filed in the Official Military Personnel File.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to show he is entitled to severance pay and/or retirement pay and removal of court-martial charges.

2.  The applicant voluntarily requested a discharge in lieu of trial by court-martial.  In doing so, he admitted he was guilty of one or more of the four charges preferred against him or of a lesser included charge.  

3.  The ADRB found that limited use information related to one of the charges had been introduced into the discharge process and that there were discrepancies in the record contradicting the charge of AWOL and the record of lost time on the applicant's DD Form 214.  The ADRB granted the required relief by changing his character of service to honorable and restoring his rank, but found the reason for discharge was fully supported by the record.  

4.  The applicant admitted guilt to multiple charges under the UCMJ, only one of which needed to be true to validate his chapter 10 discharge.  He could have elected to defend himself before a court-martial.  Instead, he chose to request a discharge.  Therefore, he is not entitled to correction of his record to show he is entitled to retirement pay.

5.  The applicant voluntarily requested a discharge under a regulation established by the Secretary of the Army; therefore, he is not entitled to separation or severance pay.  

6.  The only record of court-martial charges is included in the applicant's separation proceedings and they were properly filed in his record.  He is not entitled to removal of any record/documents.  

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)                                         AR20100007023



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ABCMR Record of Proceedings (cont)                                         AR20100007023



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