IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013104 


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:

* An upgrade of his discharge under other than honorable conditions to an honorable discharge
* Reinstatement on active duty
* Restoration of his rank to staff sergeant (E-6)
* Back pay and allowances

2.  The applicant states:

* He needs to have everything back in order
* Fort Lewis messed up everything and he was put in jail for no reason
* He had already been discharged from the Army under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 14, when the Army said he was absent without leave (AWOL) on 21 July 2001
* He returned to the Individual Ready Reserve in the rank of sergeant (E-5) and then he was promoted to E-6

3.  The applicant provides copies of:

* A chronology of events
* Numerous documents contained in his Official Military Personnel File
* Self-authored letters and Memoranda for Record
* Five supporting letters from associates attesting to his good character
* Inmate Work and Training Evaluations
* Leave and Earnings Statement printouts
* Email pertaining to changing his pay grade

CONSIDERATION OF EVIDENCE:

1.  With prior active and inactive service, the applicant enlisted in the Regular Army (RA) on 7 September 2000 for 4 years, in the pay grade of E-5.

2.  Nonjudicial punishment (NJP) was imposed against the applicant on 8 March 2001, due to the following:

* AWOL for 1 day
* Disrespect toward a noncommissioned officer
* Use of cocaine
* Misappropriating a supply van, the property of the U.S. government

3.  The applicant's records contain Headquarters, I Corps Orders 199-0001 dated 18 July 2001, reassigning the applicant to the U.S. Transition Center, Fort Lewis, Washington, effective 25 July 2001, for transition processing and discharge.

4.  On 18 July 2001, Headquarters, I Corps Orders 199-008 were published amending Headquarters, I Corps Orders 199-0001 to change the applicant's reporting date for transition processing and discharge to 20 July 2001.

5.  Military Personnel Out-Processing Work Center Clearance Status printout shows the applicant completed out processing on 13 August 2001.  However, he does not submit orders or a DD Form 214 and neither of these documents are contained in his official record.

6.  On 5 September 2001, charges were preferred against the applicant for the following offenses:

* Going AWOL on 21 July 2001
* Failure to go to his appointed place of duty
* Two specifications of making false official statements
* Use of cocaine
* Stealing $1,237.30 (Property of the U.S. Government)
* Two specifications of making false and fraudulent claims against the U.S. government for approval and payment, in the amount of $1,237.30



7.  When the applicant returned from AWOL, he was placed in pre-trial confinement on 28 December 2001.

8.  The available records do not show the date the charges were referred to a general court-martial.  However, his records do show that on 9 April 2002 the applicant was convicted, pursuant to his pleas, by a general court-martial of the following offenses:

* Desertion
* Two specifications of making false official statements
* Use of cocaine
* Larceny
* Two specifications of making a fraudulent claim against the government in the amount of $1,237.30
* Signing an official document with intent to deceive
* Making a fraudulent claim against the government in the amount of $1,429.60

9.  The applicant was sentenced to:

* A bad conduct discharge (BCD)
* Confinement for 300 days
* A forfeiture of all pay and allowances

10.  On 23 July 2002, the applicant was released from confinement upon completion of his sentence and he was placed in an excess leave status pending affirmation of his general court-martial conviction.  

11.  The available records show that on 23 July 2002, while he was on excess leave, he contacted the U.S. Army Human Resources Command (AHRC) numerous times that day and the days following, requesting information and participation in tours of duty.  Annual training documentation was prepared for the applicant with an effective date of 19 August 2002 through 30 August 2002.

12.  On 23 September 2002, the convening authority approved only so much of sentence as provided for:

* A BCD
* Confinement for 9 months
* A forfeiture of all pay and allowances

13.  Except for that part of the sentence extending to a BCD, the sentence was ordered executed.
14.  On 29 October 2002, at the applicant's request, he was sent email by AHRC containing information and forms to be completed for a tour of duty at Hunter Army Air Field, with an effective date of 7 July 2003.  On 13 November 2002, he volunteered for an assignment to a USAR troop program unit (TPU).  On 14 November 2002, the applicant contacted AHRC requesting orders showing he was assigned to a TPU from the USAR Control Group and the orders were emailed and faxed to him on the same day.

15.  On 21 November 2003, Headquarters, U.S. Army Armor Center and Fort Knox, noting that the general court-martial sentence had been affirmed, ordered that portion of his sentence pertaining to a BCD executed.  

16.  Orders 04-008-00046 were published by the 81st Regional Readiness Command on 8 January 2004, ordering the unit to which the applicant was assigned, to active duty in support of Operation Iraqi Freedom, effective 12 January 2004.  Although the orders were amended on the same day that they were published to revoke his name, his records show that he mobilized to Iraq with the unit.

17.  On 23 April 2004, a DD Form 214 was prepared discharging the applicant from the RA, as a result of a duly approved and affirmed general court-martial conviction.  The DD Form 214 shows he was not available to sign.

18.  The applicant was promoted to the rank of staff sergeant (E-6) effective 13 December 2004.

19.  The applicant reenlisted in the USAR for an indefinite term on 13 January 2005, in the pay grade of E-6.

20.  Although it is unclear as to the exact date that the applicant's unit demobilized from Iraq, his records show he was issued a DD Form 214 releasing him from active duty on 6 April 2005, at the completion of his required service and returning him to his Reserve unit of assignment.

21.  The applicant enlisted in the Army National Guard on 3 August 2005.  He was ordered to active duty in support of Operation Iraqi Freedom, effective 22 January 2006.  The facts and circumstances pertaining to his discharge are not on file.  However, the DD Form 214 he was issued shows he was discharged under other than honorable conditions on 10 August 2007, under the provisions 
of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  His DD Form 214 also shows he was discharged in the rank and pay grade of private (E-1).  He signed the DD Form 214 acknowledging that the information contained therein was correct.
22.  The Adjutant General for the State of Georgia published Orders 298-063 discharging the applicant from the Army National Guard and as a Reserve of the Army, effective 11 August 2007 and directing the issuance of a discharge under other than honorable conditions.  The applicant was issued an NGB Form 22 reflecting this information.

23.  On 26 March 2010, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 

24.  The applicant submits five statements from individuals who attest to his good character.  He also submits self-authored letters and memoranda contending that what the Army did was wrong and that the Army needs people to lead and guide the new young Soldiers.  In these letters he states that he should be reinstated to duty and his rank should be restored.  He states he should be allowed to continue serving his country and if he is restored to duty, he gives his word that he will do his best to guard his country.

25.  Article 58, Uniform Code of Military Justice (UCMJ), provides that a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority that includes a dishonorable discharge, a bad conduct discharge, confinement, or hard labor without confinement reduces that member to pay grade E-1, effective on the date of that approval.

26.  Army Regulation 600-8-19200 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states that when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

27.  Army Regulation 635-200 (Enlisted Personnel Separations) 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.

28.  Army Regulation 635-200, paragraph 3-7a, of 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

29.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.  However, his contentions are not supported by the evidence of record.

2.  The applicant's record contains orders dated 18 July 2001 showing he was reassigned to the U.S. Transition Center, Fort Lewis, Washington, for transition processing and discharge, effective 20 July 2001.  However, there is no evidence in the available record, nor has the applicant submitted any evidence showing that he was actually discharged under the provisions of Army Regulation 
635-200, chapter 14.  

3.  There are no facts and circumstances nor is there a chapter 14 discharge packet in his official record.  Therefore, it must be presumed that he was not officially discharged on 20 July 2001 as he contends.

4.  The applicant's records do show he was convicted, pursuant to his pleas, by a general court-martial on 9 April 2002 for:

* Desertion
* Two specifications of making false official statements
* Use of cocaine
* Larceny
* Two specifications of making a fraudulent claims against the government in the amount of $1,237.30
* Signing an official document with intent to deceive
* Making a fraudulent claim against the government in the amount of $1,429.60

5.  He knew he had been convicted by a general court-martial and that part of his sentence included a BCD.  It does not appear that he ever disclosed this information at any time when he was contacting AHRC and requesting tours of duty.  Had he disclosed this information he would have been told that he was not qualified for reenlistment or for any further tours of duty based on his character of service.  The available records suggest that his failure to disclose this information was not accidental and that all of his actions pertaining to the Army after his release from confinement were for the purpose of evading discharge.  It appears that his subsequent reenlistments after his court-martial conviction were fraudulent.

6.  The applicant is not entitled to have his rank restored or back pay and allowances because his reduction to the pay grade of E-1 was proper.  In accordance with Article 58, UCMJ, he should have been reduced to the pay grade of E-1 on 23 September 2002, the date that his general court-martial sentence was approved.  However, he managed to elude being reduced to the pay grade of E-1 until he was discharged under other than honorable conditions on 10 August 2007, which according to Army Regulation 600-200, resulted in an automatic reduction to the lowest enlisted grade.

7.  The applicant has not shown error or injustice in either of the two the types of discharges he received.  Therefore, there is no basis for reinstating him on active duty as he requests. 

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)                                         AR20100013104



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ABCMR Record of Proceedings (cont)                                         AR20100013104



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