IN THE CASE OF:	  

		BOARD DATE:	    12 September 2013

		DOCKET NUMBER:  AR20130003207 


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, reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he received a letter from the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) informing him that a newspaper company recently published articles describing misconduct by an employee at the U.S. Army Criminal Investigation Laboratory (USACIL).  The articles detail that the employee had falsified entries on control tests used during DNA examinations, rending the DNA tests invalid.  This explanatory courtesy letter is provided to the applicant because a review of the records showed the employee was potentially involved in his case.  USACIL conducted an investigation involving the employee.  The investigation did not uncover any Army cases where this employee's actions adversely affected the accused.  

3.  The applicant provides a copy of the said letter. 

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 AR20040008001, on 12 May 2005.

2.  The applicant provides a letter, dated 21 December 2012, from the Office of the ASA (M&RA).  This letter was not previously considered. 
3.  The applicant enlisted in the Regular Army on 26 February 1996 and held military occupational specialty 91B (Medical Specialist).  He was assigned to Fort Sam Houston, TX. 

4.  On 9 July 2001, court-martial charges were preferred against him for wrongfully using cocaine, raping a female civilian, and unlawfully striking a child under the age of 16 years.

5.  An investigation into the applicant's misconduct commenced on 23 July 2001. The Investigating Officer's Report revealed that the evidence against the applicant showed that he had sex with a civilian female against her will, that he had struck a child under the age of 16 years, and that the results of a urinalysis test showed he was positive for the use of cocaine.  The investigating officer recommended the applicant's case be referred to a general court-martial for trial. 

6.  Although not available for review with this case, it appears subsequent to court-martial charges the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he appears to have requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he would have acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge; and 

	c.  he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 13 and 17 September 2001, his immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 
8.  On 26 September 2001, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 5 October 2001, the applicant was discharged accordingly.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 5 years, 7 months, and 10 days of creditable active service.

10.  On 22 May 2002 (file review) and 19 March 2003 (personal appearance) , the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

11.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

	a.  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.  

	b.  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 record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He appears to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  The courtesy letter he received from the ASA (M&RA) informed him that a newspaper company recently published articles describing misconduct by an employee at USACIL.  It appears an employee had falsified entries on control tests used during DNA examinations, rending the DNA tests invalid.  This letter also informed the applicant that USACIL conducted an investigation involving the employee and the investigation did not uncover any Army cases where this employee's actions adversely affected the accused.  As the applicant’s request for discharge would have included his admission of guilt to the charges, any USACIL misconduct would have had no effect on his separation proceedings.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading his discharge to either an honorable or a general 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 the overall merits of this case are 

insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20040008001, dated 12 May 2005.



      _______ _ 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)                                         AR20130003207





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ABCMR Record of Proceedings (cont)                                         AR20130003207



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