IN THE CASE OF:	  

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120022385 


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 the charges or complaints filed against him on the
DD Form 458 (Charge Sheet) be corrected.

2.  The applicant states:

	a.  He was accused of writing a threatening letter to a Fort Dix commander.  This letter did not intend to threaten anyone.  He was simply stating the threat "he" felt and "his" interpretation of the threat.  No one suffered except him and no one was threatened.

	b.  He was accused of intent to deceive by signing his name to a privately owned vehicle (POV) checklist.  Everyone knew he did not have a driver license. When the sergeant inspected the POVs and the checklists, he (the applicant) was not the owner or the driver.  He simply gave the sergeant the owner's information and signed his name in the operator's signature with no intent to deceive.

	c.  He was accused of being absent without authority and not at his prescribed place of duty.  This was because he was arrested and detained by the civilian police in New Jersey.  The Military Police were notified by the civilian police to pick him up.  This was a traffic matter; he was not absent without leave. 

	d.  He was told to have his girlfriend call his sergeant every hour while the sergeant gave him permission to retrieve his vehicle from the police impound.  They returned about 45 minutes later than expected.  This was not a problem until he began to complain at Walter Reed Hospital.

3.  The applicant provides:

* DD Form 458 (front page only)
* POV Inspection Checklist
* DA Form 3975 (Military Police Report)
* DA Form 3822-R (Report of Mental Status Evaluation)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the New Jersey Army National Guard (NJARNG) on 19 September 1983.  He held military occupational specialties 11C (Indirect Fire Infantryman), 88M (Motor Transport Operator), and 91W (Health care Specialist).

2.  He served through multiple extensions in the ARNG, in a variety of assignments, and he attained the rank/grade of specialist (SPC)/E-4.

3.  On 27 May 1998, he was reduced from SPC/E-4 to private first class (PFC)/
E-3 for inefficiency. 

4.  On 24 February 2000, he was flagged for failing the Army Physical Fitness Test (APFT).

5.  On 2 November 2000, he was reprimanded by his immediate commander for being intoxicated while on duty.  As a result of his wrongful overindulgence in alcohol, he was unable to perform his duties.

6.  On 7 February 2003, he was ordered to active duty in support of Operation Iraqi Freedom.  He served in Iraq from 15 April 2003 to 11 August 2003.

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), contains:

	a.  Orders 023-001, issued by Headquarters, U.S. Army, Fort Dix, NJ, dated 23 January 2004, reducing him from PFC/E-3 to private (PV1)/E-1, effective
14 January 2004. 

	b.  Orders 023-0012, issued by the same headquarters, dated 23 January 2004, ordering his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) effective 23 January 2004. 

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 24 January 2004 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He completed 11 months and 18 days of creditable active service during this period.

	d.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows he was discharged from the ARNG in lieu of a court-martial by authority of Orders 076-066, issued by the NJARNG on 25 January 2004.

8.  On 28 February 2011, he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB subsequently determined his discharge was proper and equitable.  Accordingly, the ADRB denied his petition.

9.  He submits the front page of a DD Form 458, dated 6 January 2004, that shows the Commander, Company C, Installation Support Battalion, preferred court-martial charges against him for violating the Uniform Code of Military Justice (UCMJ) as follows:

* Charge I, two specifications of violating Article 86, in that he did, without authority, fail to go at the time prescribed to his appointed place of duty on 2 December 2003 and 3 December 2003
* Charge II, one specification of violating Article 107, in that he did, with intent to deceive, falsely sign an official record (a POV Checklist) by placing a false driver's license (that of his brother) on the checklist
* Charge III, violating Article 134, in that he wrongfully communicated a threat to injure Fort Dix personnel by stating "someone or myself will be unnecessarily hurt" and that the "blood will be on your hands; I cannot see myself returning to the slaughter house"

10.  He also submits:

	a.  A POV Inspection Checklist, showing an inspection was conducted on 23 September 2003 and the operator's name and signature are listed as those of the applicant.  The checklist also contains a license plate number and state. 

	b.  A DA Form 3975, dated 3 December 2003, that shows the applicant had been apprehended for a traffic and a criminal violation (driving while under the influence of alcohol).

	c.  A mental status evaluation report, dated 8 January 2003, that shows he had been diagnosed with an adjustment disorder with mixed disturbance of emotions and conduct; alcohol dependence, with physiological dependence; personality disorder traits; chronic low back pain; and other social, occupational, and legal stressors.

11.  The Manual for Courts-Martial (MCM) contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the UCMJ.  The MCM covers almost all aspects of military law.  

	a.  When a Soldier has reportedly committed an offense, his or her immediate commander will conduct an inquiry.  This inquiry may range from an examination of the charges and an investigative report or summary of expected evidence to a more extensive investigation, depending on the offense(s) alleged and the complexity of the case.  The investigation may be conducted by members of the command or, in more complex cases, military and civilian law enforcement officials.  Once evidence has been gathered and the inquiry is complete, the commander can choose to dispose of the charges by (1) taking no action; (2) administrative action; (3) imposing non-judicial punishment under the provisions of Article 15, UCMJ; (4) preferring charges; or (5) forwarding to a higher authority for preferral of charges.

	b.  The first formal step in a court-martial, preferral of charges, consists of drafting a charge sheet containing the charges and specifications against the Soldier.  The charge sheet must be signed by the accuser under oath before a commissioned officer authorized to administer oaths.  Once charges have been preferred they may be referred to one of three types of courts-martial: summary, special, or general.  The seriousness of the offenses alleged generally determines the type of court-martial.  The court-martial must be convened by an officer with sufficient legal authority, that is, the "convening authority," who will generally be the commander of the unit to which the accused is assigned.  Charges are recorded on the DD Form 458.

12.  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, including a bad conduct or a dishonorable 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.  

	a.  The Soldier's written request will also include an acknowledgment that he/she understands the elements of the offense(s) charged and is guilty of the charge(s) or of a lesser included offense(s) therein contained which also authorizes the imposition of a punitive discharge.

	b.  Use of this discharge authority is encouraged when the commander determines that the offense is sufficiently serious to warrant separation from the Service and that the Soldier has no rehabilitation potential.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances that led to his voluntary discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 4 January 2004 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial.

2.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  With respect to his arguments:

	a.  The arguments related to his whereabouts on 3 December 2003 and/or the POV checklist would have presumably been considered by the separation authority - if the applicant had raised such issues.  After all, that would have been the appropriate forum to raise any issues. 

	b.  Chapter 10 allows a Soldier who does not want to face a court-martial an opportunity to request a voluntary discharge.  It appears the applicant in this case did exactly that.  He could have elected trial by court-martial if he thought he was innocent of the charges that he now contends.

	c.  Once the convening/separation authority approved the applicant's voluntary request for discharge, all charges and specifications stated against him on the DD Form 458 were dismissed.  His voluntary request for discharge was an admission of guilt in exchange for dismissing the charges.

4.  Since the court-martial charges have been dropped in exchange for allowing him a discharge, there is nothing to correct on the DD Form 458.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120022385



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ABCMR Record of Proceedings (cont)                                         AR20120022385



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