IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110008464 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* reconsideration of the applicant's previously denied request for an upgrade of her discharge under other than honorable conditions to at least general under honorable conditions
* a personal appearance hearing 

2.  Counsel states:

* the convening authority who approved the applicant's resignation was new and remote in the chain of command and did not know her
* two of the five Army Discharge Review Board (ADRB) panel members voted to grant an upgrade of the applicant's discharge and it is reasonable that a court-martial panel could have reviewed the same evidence and not discharged her
* a more careful review by the convening authority could have rendered the same opinion
* the evidence suggests her command supported at least a general discharge
* the applicant had a spotless disciplinary record and "top block" officer evaluation reports throughout her military career
* the applicant's personal life caused a lapse in her judgment
* since her discharge, she has been an outstanding example of how the Army can prepare an individual for a productive civilian career

3.  Counsel provides:
* counsel's appointment letter
* counsel's statement
* ADRB Case Report AR20070016588
* ADRB Case Report AR20080017596
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings AR20090015311
* email, dated 13 April 2011

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090015311 on 13 April 2010.

2.  Counsel provides the argument that evidence suggests the applicant's command supported at least a general discharge by and through her civilian counsel.  A letter prepared by the applicant's previous counsel references a general discharge from her command.  Counsel states affidavits will be submitted for the Board's review.  As of this date, affidavits have not been submitted.  Counsel's argument was not previously considered by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  Records show the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 10 May 1996.  On 14 August 1996, she was ordered to active duty.  She was promoted to first lieutenant on 31 May 1998 and to captain on 1 June 2000.  She served as a health services administration officer.

4.  On 6 May 2002, charges were preferred against the applicant for:

* three specifications of signing an official document (request for compassionate reassignment) with intent to deceive
* three specifications of larceny
* preparing and presenting a dislocation allowance (DLA) voucher, a temporary lodging expense (TLE) voucher, and a DD Form 1351-2 (Travel Voucher or Subvoucher) for payment which claims were false
* wrongfully and dishonorably representing (verbally) false statements to her chain of command while applying for a compassionate reassignment
* wrongfully and dishonorably submitting a fraudulent compassionate reassignment packet
* wrongfully and dishonorably submitting a DLA voucher, TLE voucher, and DD Form 1351-2 for payment
* falsely pretending to require a compassionate reassignment to obtain an airline ticket, shipment of her vehicle to her new duty station, shipment of her hold baggage to her new duty station, and shipment of her household goods to her new duty station

5.  On 17 June 2002, the applicant consulted with counsel and submitted a request for resignation for the good of the service in lieu of trial by a general court-martial under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-13.  In her request she acknowledged she had not been subject to coercion with respect to her resignation and she had been advised of and fully understood the implications of the action.  She also acknowledged that she understood her resignation, if accepted, would be considered as under other than honorable conditions.

6.  The applicant was advised of her rights and understood that if her resignation were accepted, she could receive any type of discharge as determined by Headquarters, Department of the Army.  The applicant's chain of command recommended approval of her resignation in lieu of trial by a general court-martial.  On 9 July 2002, the Commander, U.S. Army Garrison, Fort McPherson, GA, and convening authority, recommended approval of the applicant's resignation with issuance of an under other than honorable conditions discharge.  The convening authority did not approve the applicant's resignation.  The applicant's resignation request was then forwarded to Headquarters, Department of the Army (Army Ad Hoc Review Board), for a decision.

7.  The Army Ad Hoc Review Board met and recommended the applicant's resignation be accepted with issuance of a discharge under other than honorable conditions.  On 14 August 2002, the Deputy Assistant Secretary of the Army (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board, accepted the applicant's resignation, and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.

8.  On 3 September 2002, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-martial.

9.  On 19 October 2008, the ADRB voted 5-0 to deny the applicant's request for an honorable discharge.
10.  The applicant was granted a personal appearance before the ADRB and the ADRB voted 3-2 to deny the applicant's request for an honorable discharge on 8 June 2009.

11.  Army Regulation 600-8-24 sets forth the basic authority for the separation of officer personnel.  Paragraph 3-13 provides that an officer may voluntarily submit a request for resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by a general court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 600-8-24, paragraph 3-14, provides that requests for resignation for the good of the service are processed through the same channels as court-martial actions to the commander exercising general court-martial jurisdiction.

13.  Army Regulation 600-8-24, paragraph 1-22a, provides that an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.

14.  Army Regulation 600-8-24, paragraph 1-22b, provides that an officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer:  (1) submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct; (2) is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate; (3) is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence; or (4) is discharged for the final revocation of a security clearance under DODD 5200.2-R and Army Regulation 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge under other than honorable conditions is appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request that the applicant's discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions was carefully considered and determined to be without merit.

2.  Although the applicant and counsel have requested to personally appear before the Board, there is sufficient evidence available for a fair and impartial consideration of her case without such an appearance.

3.  Counsel's argument that "the convening authority who approved the applicant's resignation was new and remote…" is without merit.  By regulation, all resignations for the good of the service must be forwarded to Headquarters, Department of the Army, for approval.  Therefore, by necessity and regulation, every such case will be decided by the convening authority or the Deputy Assistant Secretary of the Army (Army Review Boards) – someone new and remote in an individual's the chain of command.

4.  Although counsel argues the convening authority and a court-martial panel could have rendered a decision not to discharge the applicant, records show the applicant consulted with counsel and voluntarily submitted a request for separation for the good of service to avoid trial by court-martial.  She acknowledged that if her resignation were accepted, her service would be characterized as under other than honorable conditions.

5.  Counsel asserts a general discharge under honorable conditions was supported by the applicant's command.  However, records show her chain of command recommended approval of her resignation and that she receive a characterization of service of other than honorable conditions.

6.  The evidence shows the applicant was properly and equitably discharged.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  She has appealed through the appropriate channels and there is no evidence of procedural errors which would have jeopardized her rights.  Her discharge accurately reflects her overall record of service.

7.  Based on the foregoing, counsel failed to show that an error or injustice occurred.  Therefore, the applicant is not entitled to a general under honorable conditions 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 the overall merits of this case are 
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090015311, dated 13 April 2010.



      _____________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)                                         AR20110008464



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ABCMR Record of Proceedings (cont)                                         AR20110008464



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