IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100021377 


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 and upgrade of his under other than honorable conditions discharge. 

2.  The applicant states he did not receive a fair legal process and that the facts of the case were without legal merit.  First, during the Article 32 hearing, the Army used a testimony of a Soldier who was chaptered out.  Second, he did not have a chance to speak during his Article 32 hearing.  Third, the Soldier who accused him wanted to withdraw the accusations and his attorney even talked to that Soldier on the phone.  Additionally, that same Soldier came over to his house and apologized to him and his wife.  

3.  The applicant also states that he joined the Army in 1985 and spent all 4 years of high school in Junior Reserve Officers' Training program.  He never had any problems while in the Army.  After this incident, his attorney told him to sign some papers and his problems would go away.  He did not tell him he would receive an under other than honorable conditions discharge.

4.  The applicant provides a character reference letter, a letter of appreciation, and a letter of recommendation for employment. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's records show he enlisted in the Regular Army in the rank/grade of sergeant/E-5 on 11 January 2006 and held military occupational specialty 74D (Chemical Operations Specialist).  He was assigned to Fort Hood, TX.

2.  During the months of April and May 2007, an investigation officer (IO) conducted an Article 32 hearing to look into allegations that the applicant violated the following Articles of the Uniform Code of Military Justice (UCMJ):

* Article 92, violation of a general regulation by wrongfully fraternizing with a junior enlisted Soldier
* Article 128, unlawfully choking a Soldier by placing his hands on his throat
* Article 134, committing an indecent assault upon a female private, a person not his wife, by digitally penetrating her v----- with his fingers, with intent to gratify his sexual desires

3.  The applicant was represented by a military attorney who was present throughout the presentation of evidence as well as a civilian attorney.  He was also granted two delays which amounted to 39 days.  Both attorneys were afforded the opportunity to cross-examine witnesses, call any additional witnesses, and present any further evidence.  

	a.  In her sworn statement, the female victim stated that she did not recall the actual penetration by the applicant and that some of the events were a blur.  However, during her verbal testimony on 9 April 2007, she indicated that she remembered vividly and emotionally the applicant's alleged digital penetration of her v---- with an intent to gratify his sexual desires.  The defense attorney cross-examined the victim and asked if she remembered when the civilian attorney called her and if she remembered when she indicated she did not want to testify and not wanting to get the applicant in trouble.  

	b.  The IO determined thoroughly and impartially all the relevant facts, weighed and evaluated those facts, and determined the truth of the matters stated in the charges.  The IO further determined there was sufficient evidence to proceed with a general court-martial.

4.  On 26 July 2006, court-martial charges were preferred against the applicant for one specification of violation of a general regulation by wrongfully fraternizing with a junior enlisted Soldier; one specification of simple assault by unlawfully choking a Soldier by placing his hands on his throat; and one specification of committing an indecent assault upon a female private, a person not his wife, by digitally penetrating her v----- with his fingers, with intent to gratify his sexual desires.

5.  On 14 June 2007, the applicant 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 Uniform Code of Military Justice (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 voluntarily 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).

6.  In his request for discharge, he indicated that he was making this request of his own free will and he 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 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."  He did not elect to submit a statement on his own behalf.

7.  On 19 and 20 June 2007, his immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge. 

8.  On 22 June 2007, the separation authority approved the applicant's voluntary request for discharge for the good of the service in lieu of a court-martial 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.  On 18 July 2007, the applicant was accordingly discharged.

9.  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 a trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 6 months, and 8 days of creditable active military service during this period and he had 12 years, 4 months, and 21 days of prior active service.

10.  On 18 March 2010, the Army Discharge Review Board denied his petition for an upgrade of his discharge.
11.  He submitted the following documents:

	a.  A character reference letter, dated 3 June 2010, from a retired sergeant first class who describes the applicant as an individual with a high degree of integrity and who lives the Army values.  

	b.  A letter of recommendation for employment, dated 4 June 2008, from his former operations sergeant who attests to the applicant's heroism, intelligence, and professionalism.  The author also comments on the applicant's enthusiastic and dedicated attitude as well as his reliable work habits.

	c.  A letter of appreciation, dated 23 June 1992, from a former company commander who commends the applicant on his efforts in support of wounded warriors.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.

	a.  Paragraph 3-7a, 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.

	b.  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.

13.  According to the Manual of Courts-Martial, the maximum punishment for violating Articles 92, 128, and 134 of the UCMJ is as follows:

* Article 92, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years
* Article 128, (simple assault), confinement for 3 months and forfeiture of tw0-thirds pay per month for 3 months
* Article 134, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded. 

2.  His records show he was charged with the commission of multiple 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.  In addition, he stated in his request for discharge that under no circumstances did he desire to perform further military service.

3.  With respect to his argument:

	a.  Contrary to his argument that he was not allowed to speak during the hearing, the evidence of record shows he was represented by two attorneys who were provided maximum opportunities to cross-examine witnesses during the hearing, call any additional witnesses, and present any further evidence.

	b.  Contrary to his argument that he did not receive a fair legal process, the evidence of records shows the IO determined thoroughly and impartially all the relevant facts, weighed and evaluated those facts, and determined the truth of the matters stated in the charges.  The IO further determined there was sufficient evidence to proceed with a general court-martial.  Only then did his chain of command prefer court-martial charges against him.

	c.  Contrary to his argument that the accuser wanted to withdraw the charges, the IO determined that in her testimony, the victim testified that she did not want to get the applicant in trouble but she remembered vividly and emotionally of the digital penetration by the applicant.  The idea that she did not want him to get in trouble does not change the fact that she stated he committed the said offense. 

	d.  Contrary to his argument that he was given papers to sign, the evidence of records shows he consulted with 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.  Only then did he voluntarily and willingly elect to be discharged instead of facing a court-martial. 

	e.  Contrary to his argument that the facts of the case were without legal merit, the evidence of record shows that he was afforded an opportunity to undergo a general court-martial to prove his innocence but he elected not to do so.  By doing so, he not only forfeited his right to prove his innocence but he also acknowledged that he was guilty of the charges. 

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 honorable or a general 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 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)                                         AR20100021377



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ABCMR Record of Proceedings (cont)                                         AR20100021377



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