IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110014226 


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 for an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* He enlisted for 3 years, not 4 years as stated in the Board's Record of Proceedings (ROP)
* The highest rank/grade he attained was specialist (SPC)/E-4, not private first class (PFC)/E-3 as stated in the Board's ROP
* He was coerced by his battalion commander into signing the chapter 10
* He did not commit the charges listed on the charge sheet
* He did not consult with counsel; he only saw an attorney one time
* His attorney coerced him into signing the chapter 10; he would not have signed the chapter 10 had he not been coerced into signing it
* His attorney ordered him to make a sworn statement that contained what he wanted it to read; he did so five times but his attorney destroyed the statements

3.  The applicant provides a copy of his May 2003 Leave and Earnings Statement (LES).

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 AR20100027851, on 5 May 2011. 

2.  The applicant submitted a copy of his May 2003 LES and a new argument which were not previously considered by the Board.  Therefore, they are considered new evidence and such warrant consideration by the Board.

3.  The applicant's record shows he enlisted in the Regular Army for a period of 3 years on 8 May 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

4.  His records also show he served in Afghanistan from 17 December 2001 to 17 June 2002 and Kuwait/Iraq from 1 March 2003 to 21 September 2003.  

5.  His available records show the highest rank/grade he attained was PFC/E-3; however, he provides a copy of his May 2003 LES that lists his rank/grade as a SPC/E-4.

6.  On 17 June 2003, his command preferred court-martial charges against him for one specification each for:

* assaulting staff sergeant (SSG) CW, a superior noncommissioned officer (NCO) on 31 May 2003 by locking and loading his rifle, placing the selector lever on semi, and putting the weapon to the head of SSG CW while he was sleeping
* assaulting first sergeant (1SG) CR on 31 May 2003 by locking and loading his rifle, placing the selector lever on semi, and pointing the weapon at 1SG CR while his back was turned 
* assaulting SSG CW on 31 May 2003 by locking and loading his rifle, placing the selector lever on semi, and pointing the weapon at SSG CW while his back was turned 

7.  On 25 June 2003, by memorandum signed by the applicant, he stated that he understood or acknowledged that he 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 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).

8.  In his request for discharge, he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* 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 dishonorable discharge
* he acknowledged he understood that if the discharge request was 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
* he acknowledged he understood that if the discharge request was approved he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he was advised and understood the possible effects of the under other than honorable  conditions discharge
* he was advised that he could submit any statement he desired in his own behalf

9.  On 9 and 11 July 2003, his immediate, intermediate, and senior commanders recommended disapproval of the request for voluntary discharge.  They all recommended a general court-martial empowered to adjudge a bad conduct or a dishonorable discharge.  However, a second endorsement in his records shows his immediate and senior commanders recommended approval of the discharge while his intermediate commander recommended disapproval.

10.  On 5 August 2003, subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade with issuance of an under other than honorable conditions discharge.  On 29 September 2003, the applicant was accordingly discharged.  

11.  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 trial by a court-martial with a characterization of service of under other than honorable conditions.  This form further shows he completed 2 years, 4 months, and 22 days of creditable active service.  

12.  On 31 July 2007, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

14.  Army Regulation 635-200, 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.

15.  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.  His records show he was charged with the commission of 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.

2.  Contrary to his contention, the available evidence shows the applicant acknowledged he had consulted with counsel and he 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.

3.  Also contrary to his contention that he was coerced into requesting discharge, a chapter 10 is a voluntary request.  Not only did he acknowledge that he was making this request of his own free will and had not been subjected to any coercion whatsoever, he could have elected trial by a court-martial if he felt he was innocent of the charge and/or specifications.

4.  Aside from the May 2003 LES he submitted that shows his rank/grade as that of a SPC/E-4, nothing in his records reflects such promotion.  But regardless of his rank, (and regardless of the fact the original ROP erred in stating he enlisted for 4 years) the facts remains that he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  

5.  Based on his overall record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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 to amend the decision of the ABCMR set forth in Docket Number AR20100027851, dated 5 May 2011.



      _______ _   __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)                                         AR20110014226



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ABCMR Record of Proceedings (cont)                                         AR20110014226



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