IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100019969 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he served honorably for 21 years. 

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

	a.  DD Forms 214 (Certificate of Release or Discharge from Active Duty) with separation dates of 18 March 1988, 31 August 1997, 14 May 1998, 10 March 2005, and 4 August 2006;

	b.  National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) with separation dates of 14 May 1998 and 9 December 2005;

	c.  Letter issued on 19 July 2006 by the Office of the Assistant Secretary, Manpower and Reserve Affairs;

	d.  Electronic message issued on 20 July 2006 by the Human Resources Command (HRC), Alexandria, VA; 

	e.  Orders 212-0630 issued on 21 July 2006 by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell;

	f.  multiple DA Forms 67-9 (Officer Evaluation Report [OER]) with through dates of 31 October 2000, 30 December 1999, 28 July 2001, 28 July 2002, 14 December 2002, 28 September 2003, 18 April 2004, 6 August 2005, and 9 December 2005;

	g.  DA Form 1059 (Service School Academic Evaluation Report) issued for the period 29 February 2004 thru 6 August 2004;

	h.  DA Form 2166-7 (NCO Evaluation Report [NCOER]) with a through date of August 1995;

	i.  DA Form 2-1 (Personnel Qualification Record) dated and signed by the applicant on 5 February 2005;

   j.  two letters of recommendation dated 27 October 1997 and 22 July 2006;
   
   k.  Memorandum for Record dated 7 June 2006 for award of the Humanitarian Service Medal; and
   
   l.  Alabama Commendation Medal issued by the Governor of Alabama on 5 December 2000 and an official photograph dated 30 July 2003.
   
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.  With prior enlisted service, the applicant accepted an appointment as a Reserve warrant officer with service in the Army National Guard (ARNG) on 15 May 1998.  He was trained in and awarded military occupational specialty (MOS) 250N (Network Management Technician). 

3.  The applicant's personnel service record reveals five periods of honorable active duty service recorded on separate DD Forms 214.  These periods and the component in which he served are as follows:

* Regular Army from 7 May 1985 thru 18 March 1988
* ARNG from 1 July 1992 thru 31 August 1994
* ARNG from 1 September 1994 thru 31 August 1997
* ARNG from 1 September 1997 thru 14 May 1998
* ARNG from 15 May 1998 thru 10 March 2005

4.  On 10 December 2005, the applicant was ordered to active duty under the extended active duty sanctuary program for the purpose of obtaining 20 years active Federal service.  His was assigned to 101st Airborne Division (Air Assault) at Fort Campbell, KY.

5.  On 9 April 2006, he deployed with his unit to Iraq.
	
6.  On 25 May 2006, he was charged with the following offenses:

* being absent without leave (AWOL) for the period from 10 February to 18 February 2006, a duration of 9 days
* disrespect toward a superior commissioned officer on 21 February 2006
* resisting apprehension by military police on 21 February 2006
* wrongful use of cocaine during the period 20 January to 20 March 2006
* wrongful use of D-methamphetamine during the period 18 March to 26 March 2006
* drunk and disorderly conduct on 21 February 2006
* disobeying a lawful command on 22 February 2006

7.  On 7 June 2006, he voluntarily tendered his resignation under the provisions of Army Regulation 600-8-24, chapter 3, for the good of the service in lieu of trial by general court-martial.  In his voluntary request, he indicated he was making his request of his own free will and that he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged that he understood he could be discharged under other than honorable conditions, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) and U.S Government.  He stated he would provide a personal statement outlining his mitigating personal circumstances.

8.  In his personal statement, he outlined a series of personal hardships that included his wife abandoning him in October 2004 with their two children because she could not handle the stressors of his Army career and deployment schedule.  Within 3 months, his father died suddenly and his only brother was diagnosed with terminal cancer.  He resigned his Active Guard Reserve (AGR) position and returned to his troop program unit as a drilling reservist in early 2005.  He was activated to support Hurricane Katrina relief efforts and during this activation period, he went over 18 years of active Federal service.  Therefore, he was locked into 20 years of active Federal service by statute.  He was placed on extended active duty and ordered to report to Fort Campbell, KY.  

9.  He received notification his brother was dying and his company commander denied him leave so under duress he went AWOL.  During this same period, he stated he turned to alcohol and drugs to relieve the pain and anguish associated with his losses.  He stated he sought help from the Army Substance Abuse Program for his substance abuse issues and concluded his request by asking the separation authority for nonjudicial punishment and leniency when the separation authority rendered a decision.

10.  On 12 June 2006, the commanding general recommended supporting the applicant's request for resignation in lieu of court-martial and issuance of an under other than honorable conditions discharge.  

11.  On 6 July 2006, the Department of the Army Ad Hoc Review Board recommended to the separation authority that it accept the applicant's request for separation in lieu of general court-martial.  This board also recommended issuance of an under other than honorable conditions discharge.

12.  On 19 July 2006, the approval authority accepted the applicant's resignation and directed his separation with an under other than honorable conditions discharge.  

13.  Accordingly, the applicant was issued a DD Form 214 that shows he was discharged on 4 August 2006 under the provisions of chapter 3, Army Regulation 600-8-24 in lieu of trial by court-martial.  His characterization of service was under other than honorable conditions.  Item 12d (Total Prior Active Service) of this form shows he had 17 years, 4 months and 23 days.  Item 12e (Total Prior Inactive Service) shows he had 3 years, 2 months and 10 days.  In addition, item 18 (Remarks) shows he served in Iraq from 9 April 2006 to 26 July 2006.

14.  On 5 March 2007, the applicant applied to the ADRB requesting his discharge be upgraded.  On 14 March 2008, the ADRB denied his request finding his separation was both proper and equitable.  

15.  In support of his application, he provided numerous OERs showing he received satisfactory and outstanding performance evaluations with all raters recommending promotion to the next higher rank.  His senior raters found him fully qualified to best qualified and also recommended promotion.  A review of these OERs shows no derogatory comments.  He also provided an NCOER showing he met or exceeded performance standards when he served as the Battlefield Spectrum Manager.

16.  He provided an Academic Evaluation Report showing he achieved course standards during the period 29 February 2004 thru 6 August 2004 for the Network Management Technician Warrant Officer Advanced Course held at Fort Gordon, GA.  

17.  He provided two letters of recommendation.  The first letter from his warrant officer appointment packet shows he was considered as a best-qualified candidate for a warrant officer appointment due to his military and civilian communications' knowledge and experiences.  The second letter was an employment referral letter from his Command Sergeant Major.  

18.  He provided a memorandum showing he was awarded the Humanitarian Service Medal for participation in relief operations during Hurricanes Katrina and Rita.  In addition, he provided an award certificate showing he received the Alabama Commendation Medal for his exceptional and distinguished service to the State of Alabama. 

19.  References:

   a.  Army Regulation 600-8-24 (Officer Transfer and Discharges) implements the statutory provisions of Title 10, U. S. Code, governing active duty officer resignations and discharges.  Chapter 3 provides that an officer can submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial or the officer was under suspended sentence of dismissal.  The commander must ensure that the request for the good of the service is voluntary and that officer is provided an opportunity to consult with legally qualified counsel who is a member of the Judge Advocate General's Corps or a civilian counsel retained by the officer at their own expense.  An officer resigning for the good of the service normally receives a characterization of under other than honorable conditions.  In addition, an officer who resigns for the good of the service (regardless of the character of service received) is barred from rights under laws administrated by the VA based on the period of service from which the officer resigned.

   b.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  The maximum punishments for the following offenses are as follows:
   
* for AWOL of more than 3 days, but less than 30 days, is confinement for 6 months and forfeiture of two-thirds pay for 6 months
* for disrespect toward a superior commissioned officer is a bad-conduct discharge (BCD), forfeiture of all pay and allowances and confinement for 1 year
* disobeying a lawful command is a dishonorable discharge (DD), forfeiture of all pay and allowances and confinement for 5 years
* resisting apprehension is a BCD, forfeiture of all pay and allowances and confinement for 1 year
* wrongful use of cocaine and D-methamphetamine is a DD, forfeiture of all pay and allowances and confinement for 5 years
* drunk and disorderly conduct bringing discredit to the military service is confinement for 1 month and forfeiture of two-thirds pay for 1 month

	c.  Army Regulation 600-8-24 sets forth the basic authority for the separation of officers.  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 officer’s service 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.

DISCUSSION AND CONCLUSIONS:

1.  The offenses for which he was charged included AWOL for 8 days, disrespecting a superior commissioned officer, disobeying a lawful command, resisting apprehension, wrongful use of cocaine and D-methamphetamine and drunk and disorderly conduct.  The maximum punishments for the aforementioned offenses included a punitive discharge (BCD or DD), confinement for 5 years and forfeiture of all pay and allowances.  

2.  In lieu of trial by general court-martial, he voluntarily requested resignation under the provisions of chapter 3, Army Regulation 600-8-4, thus he avoided the possibility of the aforementioned maximum punishments.  In addition, within his resignation request, he acknowledged he understood he would receive an under other than honorable conditions discharge. 

3.  The applicant has failed to show through his evidence that his record is in error or unjust.  The applicant provided documentation to show he satisfactorily performed his assigned duties and his service records revealed he had served honorably during five previous periods of active duty.  However, his offenses occurred during his last period of active duty.  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 officers.  Therefore, his personal misconduct rendered his service unsatisfactory.  

4.  As the applicant has failed to provide evidence to show an error or an injustice occurred during his separation processing, there is no justification to upgrade a properly constituted discharge.  

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100019969





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ABCMR Record of Proceedings (cont)                                         AR20100019969



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