IN THE CASE OF:	  

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110010668 


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 reconsideration of his earlier request that his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions.

2.  The applicant states he believes his court-martial was a mistake.  He believes there were a lot of errors in the court-martial.  He has documents showing the charge was going to be dropped and everything reinstated.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); four DA Forms 2139 (Military Pay Voucher) dated in June and July 1988; a letter from the Senior Defense Counsel, Fort Leavenworth, Kansas, dated 30 November 1987; a Memorandum Opinion on Remand, U.S. Army Court of Military Review, dated 31 July 1987; and General Court-Martial Order Number 3, Fort Leavenworth, dated 9 March 1988.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100015858, on 7 December 2010.



2.  The DA Forms 2139 and letter from the Senior Defense Counsel, Fort Leavenworth were not discussed in the original Record of Proceedings (ROP).  Therefore, in the interest of justice and to provide clarity for the applicant, the Board should consider this evidence.

3.  The original ROP states:

	a.  that the applicant was convicted by a general court-martial on 
19 November 1982 of stealing a submachine gun and selling/bartering it to a civilian;

	b.  that on 30 May 1984, the U.S. Army Court of Military Review (USCMR) affirmed only so much of the finding as pertained to stealing the submachine gun and affirmed only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and reduction to pay grade E-1;

	c.  that on 4 December 1984, the U.S. Court of Appeals granted the applicant a petition for review resulting in the case being remanded back to the USCMR;

	d.  that on 31 July 1987, the USCMR set aside the findings and sentence and authorized a rehearing on the larceny and wrongful disposition charges;

	e.  that on 20 January 1988, the applicant submitted a request for discharge in lieu of trial by court-martial;

	f.  that on 18 February 1988, the applicant's request was approved; and 

	g.  that he was accordingly discharged with an under other than honorable conditions characterization of service.

4.  The Board determined in the original ROP that the applicant's discharge in lieu of trial by court-martial was administratively correct and complied with the applicable regulations.  The applicant contended that the court had taken the word of a witness who had been convicted of forgery and he believes that person had lied about him.  The Board further noted that the applicant, after being afforded the opportunity to assert his innocence before a second court-martial, had admitted his guilt and requested a discharge for the good of the service in hopes of avoiding a punitive discharge and a felony conviction.



5.  The applicant has provided a DA Form 2139 whereon the following entry in Item 11 (Remarks) is highlighted: "Per GCMO NO:3 DTD 9MAR88 FM HQS CAC & USDB FLK 66027 CHGS DISMISSED & ALL RIGHTS, PRIVILEGES & PROPERTY WILL BE RESTORED.  ALL CHGS SET ASIDE."

6.  The applicant has provided a letter from the Senior Defense Counsel, Fort Leavenworth with the following sentence highlighted: "It is possible that your case may be settled by a Chapter 10 and a dismissal of your charges."

7.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct discharge or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge UOTHC is normally considered appropriate.

8.  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 contends that his UOTHC discharge should be upgraded to general, under honorable conditions, because there were a lot of errors in the court-martial and that the charges were going to be dropped and everything reinstated.

2.  The applicant has not identified or explained what errors be believes occurred during his court-martial.

3.  The evidence clearly shows that after the applicant's court-martial was remanded, he admitted his guilt and requested to be discharged in lieu of trial by court-martial.  The subsequent approval of his request required that the charges be dismissed, which is what was done in the applicant's case.  There is no error or injustice in this case.

4.  The applicant appears to have the mistaken belief that the charges were dropped for some reason other than his request for an administrative discharge.  This was not the case.  Accordingly, his contentions are found not to have merit.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100015858, dated 7 December 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)                                         AR20110010668





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ABCMR Record of Proceedings (cont)                                         AR20110010668



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