IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010257 


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 correction of his military records to show a narrative reason for separation other than "in lieu of trial by court-martial."

2.  The applicant states his discharge was inequitable because it was based on an isolated incident and that his family problems were not considered at the time.  He also contends that the discharge was improper because he had applied for retirement prior to "excepting resignation" [probably intended to say prior to requesting] resignation at the end of 2002.  He had self-enrolled in the Army drug and alcohol program.

3.  The applicant further stated that when he returned from Kuwait on emergency leave his 14-year old son was in a gang and had been missing for 4 days.  He also discovered his fiancée in a compromising position with a former sergeant.  He states he has never shared this information with anyone. 

4.  The applicant also contends that:

	a.  his conduct and efficiency ratings were all top block and mostly above average;

	b.  he received military decorations for his performance, dedication to service, and volunteerism;

	c.  he was promoted with his peers and was on the promotion list for major prior to his discharge;
	d.  he was previously discharged as a staff sergeant, pay grade E-6 in 1989 with an honorable characterization of service;

	e.  he was formally charged with being absent without leave and he returned to duty without ever being ordered to a place of duty;

	f.  he was assigned to Headquarters and Headquarters Company, 1st Battalion, 11th Infantry Regiment (Infantry School), but never given a place of duty;

	g.  he did not have a duty assignment or a rater/senior rater with the 11th Infantry Regiment;

	h.  he accepted treatment at the U.S. Naval Base, Norfork, Virginia, but was released after 28 days because he was not conforming to therapy or treatment;

	i.  he had never before used crack cocaine or knew what it was at the time; and

	j.  he allowed himself to follow his fiancée in the use of crack cocaine.

5.  The applicant provides the following documents in support of his application:

	a.  Certificate of Excellence, Intensive Outpatient Program, dated 3 July 2006;

	b.  Certificate of Completion, Harbor Light System, dated 1 October 2009; 

	c.  Letter of Recommendation, Michigan House of Representatives, dated 
8 September 2006;

	d.  Letter of Completion, Henry Ford Behavioral Health, dated 15 August 2006;

	e.  Letter of Recommendation, former Principal, Daniel Webster Elementary School, dated 8 September 2006;

	f.  Letter of Recommendation, Senior, Junior Reserve Officers' Training Corps (JROTC), Cass Technical High School, dated 20 March 2007; 

	g.  Letter of Recommendation, Assistant Principal, Priest Elementary School, dated 27 March 2007;

	h.  Letter, To whom it May Concern, attesting that the applicant has been clean, sober and making the most of his life, dated 4 September 2006;

	i.  Letter, Assistant Pastor, Unity Baptist Church, dated 12 September 2006;

	j.  Letter of support from the applicant's wife, dated 6 September 2006;

	k. Letter of Recommendation, Business Manager, METRO Services Organization, Inc., dated 26 January 2006;

	l.  Letter from the Defense Finance and Accounting Service (DFAS) requesting issuance of correction to DD Form 214 based on payment of 4 days accrued leave, date stamped 28 August 2008, with DD Form 214 attached;

	m.  DA Forms 1059 (Service School Academic Evaluation Report), dated 
10 December 1993 and 27 May 1998;

	n.  DA Forms 67-9 (Officer Evaluation Report) for periods 28 May 1998-
27 May 1999; 28 May 1999 - 27 May 2000; 28 May 2000 - 26 September 2000; 
27 September 2000 - 30 April 2001; and 1 May 2001 - 30 April 2002;

	o.  Officer Record Brief, dated 6 December 2003;

	p.  DA Form 71 (Oath of Office - Military Personnel, dated 23 July 1993;

	q.  Certificate of Course Completion, Combined Arms and Services Staff School, dated 15 July 1998;

	r.  Promotion orders for first lieutenant and captain, dated 30 June 1995 and 15 July 1997, respectively;

	s.  Award orders for the Army Achievement Medal, dated 28 September 1994;

	t.  Permanent change of station orders to Fort Benning, Georgia, dated 
21 February 2003;

	u.  Enlistment Contract, Army National Guard, dated 30 October 1989;

	v.  DA Form 61 (Application for Appointment) dated 17 September 1992;

	w.  Standard Form (SF) 88 (Report of Medical Examination) dated 6 October 1992;

	x.  Orders 100-15-A-552, U.S. Army ROTC Cadet Command, dated 15 June 1993;

	y.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 
22 July 1993;

	z.  Enrollment in the Married Army Couples Program, dated 1 October 1996;

	aa.  Assignment memorandum as a nuclear, biological, chemical instructor, dated 24 April 2001;

	bb.  SF 312 (Classified Information Nondisclosure Agreement) dated 21 May 2001;

	cc.  Transmittal of Court-Martial Charges, dated 4 September 2003;

	dd.  Resignation in Lieu of Trial by General Court-Martial, dated 
12 September 2003 with enclosures; and

	ee.  Department of Veterans Affairs (VA) letter, dated 18 October 2006, indicating the applicant had an honorable characterization of service for the period from 14 November 1979 to 29 October 1989.

CONSIDERATION OF EVIDENCE:

1.  On 4 September 2003, the applicant's company commander forwarded court-martial charges that had been preferred against the applicant to the battalion commander.  The company commander recommended trial by special court-martial empowered to adjudge a bad-conduct discharge.

2.  The applicant's memorandum requesting to resign in lieu of trial by court-martial is not available for review.  However, the forwarding memorandum from the commanding general, dated 12 September 2003, is available and shows that he recommended approval of the request.  

3.  On 13 November 2003, the Commander, U.S. Army Human Resources Command, Alexandria, Virginia, approved the applicant's request to resign in lieu of trial by court-martial and directed that he be separated no later than 
13 December 2003.

4.  On 3 December 2003, the applicant was discharged from the Regular Army under the provisions of paragraph 3-13, Army Regulation 600-8-24 (Officer Transfers and Discharges) in lieu of trial by court-martial.  Accordingly, he was issued a DD Form 214 with a Separation Program Designator (SPD) Code of DFS and a narrative reason for separation of "In Lieu of Trial by Court-Martial."  His characterization of service was under other than honorable conditions.

5.  On 16 May 2008, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge to honorable.  A review of the applicant's records failed to show the circumstances surrounding his discharge from active duty.  His records did show that his request to resign in lieu of trial by court-martial was approved.  Based on the applicant's overall length and quality of service, to include his combat service, the ADRB determined that his characterization was too harsh.  Accordingly, the ADRB granted the applicant partial relief in the form of upgrading his characterization of service to general, under honorable conditions.  The ADRB further determined that the reason for his discharge was both proper and equitable.  

6.  Army Regulation 600-8-24 provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. Officers will normally receive a discharge under other than honorable conditions when they resign for the good of the service; are dropped from the rolls of the Army; are involuntarily separated due to misconduct, moral or professional dereliction; or for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be changed to show a reason for separation other than "in lieu of trial by court-martial."

2.  The evidence indicates the applicant requested separation in lieu of trial by court-martial and that his request was approved.

3.  The applicant has not provided any evidence showing he did not request separation in lieu of court-martial.  Furthermore, the applicant makes no suggestion as to what reason would be appropriate for his discharge. 

4.  There is no evidence of error or injustice.  The ADRB clearly determined that the reason for his discharge was both proper and equitable.  The applicant has not provided any evidence that sufficiently mitigates that decision.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100010257



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ABCMR Record of Proceedings (cont)                                         AR20100010257



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