IN THE CASE OF:	

		BOARD DATE:	   4 September 2012

		DOCKET NUMBER:  AR20120005779 


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, in effect, an upgrade of her discharge to a fully honorable discharge.

2.  The applicant states there was an injustice and a false statement.  She was held in jail for 109 days.  She was not allowed out until she signed a chapter 10 packet.  She submitted a rebuttal to each counseling statement that was untrue. 

3.  The applicant provides:

* Denial letter from the Army Discharge Review Board (ADRB)
* Offer to Plead Guilty and Appendix I (Quantum)
* DD Form 458 (Charge Sheet)
* Court-Martial Convening Order Number 19
* Letter from her Member of Congress
* Multiple assignment orders and amendments
* Mobile Home Rental Agreement
* Security Deposit Agreement
* Lease Addendum for Drug-Free Housing
* Multiple DA Forms 4187 (Personnel Action)
* Separation orders
* College transcripts
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)
* Enlisted Record Brief
* DA Form 31 (Request and Authority for Leave)
* Unit Risk Reduction Certification Statement
* Civilian Police Report
* Multiple DA Forms 4856 (Developmental Counseling Form)
* Multiple DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* Multiple DA Forms 2823 (Sworn Statements)
* Legal Fee and Representation Agreement
* Staff Judge Advocate Advice of Disposition of Court-Martial Charges
* Court-Martial Charges Transmittal Form
* DD Form 2707 (Confinement Order)
* Pre-trial Confinement Advice
* Chain of command's recommendation of transmittal of court-martial charges
* Memorandum of Instructions for Escorts
* DA Form 5112-R (Checklist for Pretrial Confinement)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Army National Guard (ARNG), the U.S. Army Reserve (USAR) and the Regular Army, the applicant reenlisted in the Regular Army on 7 August 2003 and she held military occupational specialty 88M (Motor Transport Operator).  

2.  She served through multiple reenlistments in a variety of stateside or overseas assignments including service in Germany as well as Kuwait/Iraq from 10 April 2008 to 27 May 2009, and she attained the rank/grade of sergeant (SGT)/E-5.

3.  She was awarded or authorized the Army Commendation Medal, Army Achievement Medal (3rd Award), Army Good Conduct Medal (4th Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with campaign star, Army Reserve Components Overseas Training Ribbon, and Driver and Mechanic Badge with Mechanic Bar.  

4.  She was assigned to the Combat Support Company, 2nd Battalion, 29th Infantry Regiment, 197th Infantry Brigade, Fort Benning, GA.

5.  Her service record shows she was frequently counseled by members of her chain of command for various infractions including:

* Refusing to answer her barracks door or respond to her first sergeant's (1SG) call
* Failing to go at the time prescribed to her appointed place of duty
* Lying to a noncommissioned officer (NCO)
* Failing to report to training
* Disrupting the platoon with her misconduct
* Leaving work without authority and not returning
* Making a threat to her sergeant
* Disrespecting the battalion commander and battalion command sergeant major

6.  On 2 November 2009, her commander notified her that he was considering nonjudicial punishment under Article 15, UCMJ for failing to go at the time prescribed to her appointed place of duty on two separate occasions, disregarding with contempt a command given by a senior NCO, willfully disobeying a lawful order from her unit 1SG, and making a false official statement. She demanded trial by a court-martial.

7.  On 8 December 2009, her immediate commander counseled her and furnished her with advice in conjunction with his decision to place her in pretrial confinement prior to her court-martial.  She was notified of the nature of the offenses and advised of her rights.  However, she refused to acknowledge receipt or sign the pretrial confinement advice.   On that date, she was placed in pretrial confinement. 

8.  On 9 December 2009, court-martial charges were preferred against the applicant for:

* Charge I, one specification of making a false official statement
* Charge II, one specification of dereliction of duties
* Charge III, one specification of treating her 1SG with contempt and one specification of willfully disobeying a lawful order
* Charge IV, four specifications of failing to go at the time prescribed to her appointed place of duty

9.  On 15 December 2009, her immediate, intermediate, and senior commanders recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.  She was served with a copy of the charge sheet and the chain of command's recommendations but she refused to sign/acknowledge receipt. 

10.  On 23 December 2009, the Fort Benning, GA, Staff Judge Advocate (SJA) reviewed the charges and their specifications and opined the charges were warranted by the evidence and that there was court-martial jurisdiction over the applicant and the charged offenses.  He recommended to the convening authority the charges and their specifications be tried by a special court-martial.

11.  On 3 March 2010, she signed an offer to plead guilty.  She indicated she had the benefit of her defense counsel's advice, and was fully advised that she had a legal and moral right to plead not guilty to the charges and specifications against her.  She agreed to plead guilty to Charge IV and specification 1 and not guilty to the remainder of the charges and/or specifications.  She further acknowledged:

* she was informed of her rights to be tried by a court and the composition of such court
* she waived her right to be tried before members and agreed that a summary court-martial officer alone would hear her case
* in exchange, the convening authority agreed to take action specified in Appendix (Quantum) to this offer

12.  Appendix I (Quantum), also dated 3 March 2010, stipulated that the convening authority agrees to refer her case to a summary court-martial and that any other lawfully adjudged punishment may be approved. 

13.  On 16 March 2010, the court-martial convening authority rejected the 
3 March 2010 offer to plead guilty and its allied Quantum.

14.  On 17 March 2010, she consulted with her hired legal counsel (civilian attorney) and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, 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 her.  Following consultation with legal counsel, she requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

15.  In her request for discharge, she indicated that:

* she was making this request of her own free will and she had not been subjected to any coercion whatsoever by any person
* she also indicated that she understood by requesting discharge she was admitting guilt to the charges against her, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* she further acknowledged she understood that if the discharge request was approved, she could be deprived of many or all Army benefits and that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* she acknowledged she could be deprived of her rights and benefits as a veteran under both Federal and State laws  

16.  On 24 March 2010, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10 and directed the issuance of an under honorable conditions discharge.  

17.  On 25 March 2010, she was released from confinement.  

18.  On 26 March 2010, Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, GA, published Orders 085-2206 ordering her discharge from the Army effective 7 April 2010. 

19.  On 7 April 2010, she was discharged accordingly.  The DD Form 214 she was issued shows she was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with a characterization of service as under honorable conditions (general).  This form also shows she completed 12 years, 4 months, and 4 days of creditable active service.

20.  On 1 December 2012, the ADRB denied her petition for an upgrade of her discharge.

21.  Army Regulation 635-200 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.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show she was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so she admitted guilt to the charges.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her overall record of service.

2.  Based on this record of indiscipline, her service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to 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 for correction of the records of the individual concerned.



      _______ _   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)                                         AR20120005779



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ABCMR Record of Proceedings (cont)                                         AR20120005779



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