BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120003193 


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 an earlier request to upgrade her general discharge to honorable and change her narrative reason for separation.

2.  The applicant states she was improperly advised of her rights in connection with her discharge processing and the charges against her were untruthful.

3.  The applicant provides:

* 2006 Annual Investment Statement
* Three letters of recommendation/character references 
* Academic Transcript

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 AR20100023945, on 28 April 2011.

2.  She provided three letters of recommendation/character reference from a Program Specialist for a Mentoring Program, a Research Associate and Facility Manager at Alabama A&M University, and a Veterans Service Officer who attest that the applicant:

* volunteers for a mentoring program and the Department of Veterans Affairs
* is a very dedicated person, task-oriented, efficient, and organized
* is honest
* is a true professional in all her standing

3.  The documentation provided by the applicant is new evidence that will be considered by the Board.    

4.  The applicant served on active duty in an enlisted status from 16 January 2002 through 13 January 2004, at which time she was honorably discharged to accept a commission.  She accepted a direct appointment as a second lieutenant in the U.S. Army Reserve and entered active duty in that status on 20 April 2004.  She was promoted to captain on 1 September 2006.

5.  On 9 May 2007, charges were preferred against the applicant for being absent without leave from 16 April to 20 April 2007, disobeying three lawful commands, assault (2 specifications), and disorderly conduct (2 specifications).  

6.  On 30 May 2007, she consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the Uniform Code of Military Justice and of the rights available to her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  In her request for discharge, the applicant acknowledged that she understood she could receive an under other than honorable conditions discharge which could have a significant impact on her eligibility for veterans’ benefits.   

7.  On 25 June 2007, the Deputy Assistant Secretary (Army Review Boards Agency) approved the recommendation of the Ad Hoc Review Board and directed the applicant be discharged under other than honorable conditions.  On 20 July 2007, the applicant was discharged accordingly.  

8.  On 14 November 2008, the Army Discharge Review Board (ADRB), after carefully examining the applicant’s record of service, indicated while it did not condone the applicant’s misconduct, it found the characterization of service was too harsh based on the applicant’s length and quality of service, and as a result was inequitable.  Accordingly, the ADRB voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  The ADRB further determined the reason for discharge was proper and equitable and voted not to change it. 


9.  Her DD Form 214 shows in:

* Item 25 (Separation Authority) the entry "AR [Army Regulation] 600-8-24, PARA (paragraph) 3-13"  
* Item 26 (Separation Code) the entry "DFS"
* Item 28 (Narrative Reason for Separation) the entry "IN LIEU OF TRIAL BY COURT-MARTIAL”

10.  Army Regulation 600-8-24 prescribes the policy and procedures governing the transfer and discharge of Army officer personnel.  Chapter 3 outlines the rules for processing requests for resignation for the good of the service in lieu of trial by court-martial.  An officer separated under this paragraph normally receives characterization of service of Under Other Than Honorable Conditions. 

11.  Army Regulation 600-8-24 states 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.  

12.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code “DFS” is "In lieu of trial by court-martial” and the regulatory authority is Army Regulation 600-8-24, paragraph 3-13.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends she was improperly advised of her rights the available evidence shows she consulted with counsel on 30 May 2007.

2.  Her contention that the charges against her were untruthful relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, she voluntarily requested discharge in lieu of trial by court-martial.  

3.  The letters of recommendation/character references submitted on behalf of the applicant are laudable; however, they fail to show her discharge was unjust and that it should be upgraded.

4.  Her voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 608-8-24, paragraph 
3-13, was administratively correct and in conformance with applicable regulations.    
5.  Her record of service included serious offenses for which court-martial charges were preferred against her.  She was a captain.  As a result, her record did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

6.  The narrative reason for separation used in the applicant's case is correct and was applied in accordance with the applicable regulations.  Therefore, there is no basis for granting her applicant's request to change her narrative reason for separation.

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 AR20100023945, dated 28 April 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)                                         AR20120003193



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ABCMR Record of Proceedings (cont)                                         AR20120003193



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