IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110016496 


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 petition for an upgrade of his under other than honorable conditions (UOTHC) discharge. 

2.  The applicant states the character of the women who accused him of rape was questionable and after witnessing testimony that was dismissed he believed he had no winning chance to prove his innocence.  He claims he was instructed by his Judge Advocate General (JAG) attorney that chapter 10 was the only route to take.  

3.  The applicant provides a self-authored statement as new argument.  

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 AR20110000169, on 21 July 2011.  

2.  During the original review of the case, the Board determined the applicant voluntarily requested discharge for the good of the service in lieu of trial by 
court-martial and waived his opportunity to appear before a court to prove his innocence if he felt he was wrongly accused.  It also concluded his separation processing was accomplished in accordance with applicable regulations with no procedural errors which would tend to jeopardize his rights. 

3.  The applicant now provides a self-authored statement with new argument.  In his statement he claims his accuser’s character was untrustworthy and untruthful.  He further states it was only after she knew she was going to be later returning to Job Corps center and could be in trouble that she accused him for rape.  He further states she made no accusations of rape to witnesses who saw them in his barracks.  He states during his Article 32 hearing his counsel was not helpful and told him he had no fighting chance for many various reasons including his race versus the race of the accuser and his prior record among other things.  He states he had been working with the Criminal Investigation Division as an informer and he felt he was doing good and had a desire to become a military police officer which was destroyed by his accuser’s allegations.  

4.  The applicant’s record shows he initially enlisted in the Regular Army on 
11 November 1992, and was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist).  It also shows he was advanced to private first class/E-3 on 1 February 1993, and that this is the highest rank he attained while serving on active duty.  In addition, it shows he was reduced to private/E-2 on 16 August 1993, and private/E-2 on 27 December 1995, for cause.  His record documents no acts of valor or significant achievement.  

5.  On 23 February 1994, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 120 of the Uniform Code of Military Justice (UCMJ) by committing the offense of rape.  

6.  On 20 April 1994, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He confirmed he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person. He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  

7.  In his discharge request, the applicant further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant was also given the opportunity to submit statements in his own behalf and elected not to do so.  

8.  On 29 April 1994, the separation authority approved the applicant's request for discharge and directed he receive an UOTHC discharge.  On 9 May 1994, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 
5 months, and 22 days of creditable active military service and had accrued 
2 days of time lost due to being absent without leave (AWOL) at the time of his discharge.  

9.  On 25 November 1996, the Army Discharge Review Board (ADRB) after carefully considering the applicant’s entire military record and the issues he raised at a records review determined the applicant’s discharge was proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.  On 14 March 2001, the applicant appeared before the ADRB with his counsel.  After carefully reviewing the applicant's record of service and the issues and testimony presented, the ADRB found the applicant's discharge was proper and equitable and voted unanimously not to change the character or reason for his discharge.

10.  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 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.  

11.  Paragraph 3-7a of the same regulation 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.  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’s request for an upgrade of his discharge has again been carefully considered.  However, there remains insufficient evidence to support his claim.  The applicant fails to provide any documentary evidence to support his assertions that he was falsely accused and that his counsel was ineffective, assertions that are contradicted and not supported by the evidence of record.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He could have elected to submit a statement voicing his current contentions, but he elected not to do so.

3.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It further shows that in his request for discharge, he admitted guilt to an offense that authorized the imposition of a punitive discharge.  Given the voluntary nature of his discharge request, his argument that the charge was false and he received ineffective counsel are not sufficiently credible to support relief.

4.  The under other than honorable conditions discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  Further, there is no error or injustice related to his separation processing that would support a change to the authority and reason for discharge or amendment of the Board’s original decision in this case.  

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 AR20110000169, dated 21 July 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)                                         AR20110016496



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ABCMR Record of Proceedings (cont)                                         AR20110016496



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