IN THE CASE OF:	 

		BOARD DATE:  18 February 2014

		DOCKET NUMBER:  AR20130007486


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 previous request for an upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in a 4-page appeal to the Board:

   a. The 2nd paragraph of the Discussions and Conclusions section of the Record of Proceedings, in Army Board for Correction of Military Records (ABCMR) Docket Number AR20110021695, dated 24 April 2012, does not address the fact that the offenses for which he was charged, and for which his discharge in lieu of trial by court-martial was requested, were of the same nature, type, and period as those in which he was previously convicted by a separate court-martial.  This violated the double jeopardy clause under the 5th amendment of the U.S. Constitution.

		(1)  According to the DD Form 458 (Charge Sheet) on which his request for discharge was based, the 1st Charge was committed in July 1983; however, he did not begin his employment at the Fort Monmouth Officers' Club until August 1983.  In July 1983, he underwent emergency surgery at Hill Air Force Base (AFB), Ogden, UT.  The discovery of this fact as evidence was withheld from his counsel by agents of the U.S. Army Criminal Investigation Command, which violated procedural regulations governing rules of evidence.

		(2)  He admitted his guilt; however, his admission was used against him in his receipt of an under other than honorable conditions discharge.  The convening authority failed to consider his entire period of service.  
		(3)  He was appropriately punished for his wrongdoings and he sufficiently redeemed himself in the months following his court-martial.

   b. With regard to the 3rd paragraph of the Discussions and Conclusions section of the Record of Proceedings, in ABCMR Docket Number AR20110021695, dated 24 April 2012:

		(1)  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) states, when a chain of command is making a consideration for type of discharge and characterization of discharge, the entire period of enlistment shall be considered, not just isolated incidents.  However, if an offense is so egregious, then an under other than honorable conditions discharge would be appropriate.  He was charged with theft; the convening authority during his court-martial trial called it "misappropriation of funds."  Therefore, the severity of his crimes did not warrant the discharge he received.

		(2)  Procedurally, his administrative discharge was improperly followed, as he was denied a medical exam.  This violated his appellate rights, since he was denied the opportunity to reenlist in an Army National Guard or U.S. Army Reserve unit after his discharge.

		(3)  He further disputes the Board's conclusions reached in the 3rd paragraph of the Discussions and Conclusions section, since it mentions he was absent without leave (AWOL), a charge he adamantly denies.  He was never AWOL during his entire period of military service.

3.  The applicant provides the following in support of his request:

* a third-party letter of support from his former company commander
* a letter from the applicant to his former battalion commander
* a third-party letter of support from his former battalion commander
* Standard Form (SF) 509 (Medical Record – Progress Notes), covering the period from 27 July 1983 through 4 August 1983
* SF 600 (Health Record – Chronological Record of Medical Care), covering the period from 9 August 1983 through 25 August 1983
* DA Form 3349 (Physical Profile Board Proceedings), dated 21 August 1983
* DA Form 3349, dated 9 September 1983
* SF 513 (Medical Record – Consultation Sheet), covering the period        25 August 1983 through 9 September 1983 
* SF 600, covering the period 9 September 1983 through 12 September 1983
* SF 513, dated 12 September 1983
* SF 600, dated 4 October 1983
* DA Form 3349, dated 6 October 1983
* DA Form 2496 (Disposition Form), dated 14 November 1984, subject: United States v. Private First Class (PFC) Cxxxxx Bxxxx, XXX-XX-2015
* an extract of Army Discharge Review Board (ADRB) Docket Number AD85-00501, dated 22 October 1993
* an extract of Army Regulation 635-200

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 ABCMR in Docket Number AR20110021695, dated 24 April 2012.  

2.  The applicant provides 2 third-party letters of support from his former company commander and battalion commander and medical documentation covering the period 27 July 1983 through 4 October 1983, which constitutes new evidence not previously considered by the Board.  Therefore, this new evidence warrants consideration.

3.  On 5 July 1978, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  After completing his initial entry training, he was reassigned to 1st Battalion, 30th Field Artillery Regiment, in the Federal Republic of Germany.

4.  On 1 October 1981, he was promoted to the rank/grade of sergeant   (SGT)/E-5.

5.  On 30 July 1982, he was reassigned to the continental United States (CONUS), where he attended and completed formal training for MOS             96C (Interrogator).  After completing reclassification training, he was awarded MOS 96C and reassigned to the 219th Military Intelligence Company, Fort Monmouth, NJ.

6.  On 13 March 1984, pursuant to his pleas, a special court-martial (SPCM) convicted him of violating Article 121 of the Uniform Code of Military Justice (UCMJ), for stealing U.S. currency from the Fort Monmouth Officers' Club, Fort Monmouth, New Jersey on 4 separate occasions on 9, 10, 17, and 30 September 1983.  He was reduced to the rank/grade of PFC/E-3 and forfeited $250.00 pay per month for six months.  On 13 April 1984, the court-martial convening authority approved the sentence and ordered it duly executed, with the exception of the forfeiture of $250.00 pay per month in excess of            2 months, which was suspended for 12 months.

7.  On 8 November 1984, court-martial charges were preferred against him for four specifications of violating Article 121 of the UCMJ, for stealing certain checks and U.S. currency from the Fort Monmouth Officers' Club, on 10 July 1983 and 8 October 1983.

8.  He consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

9.  In his request for discharge, he acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge.

10.  On 26 December 1984, the separation authority approved his request for discharge, directed he be discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge, and ordered his reduction to the rank/grade of private (PVT)/E-1.  

11.  On 2 January 1985, he was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 6 years, 5 months and 28 days of active creditable military service.  It further shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and he was received an under other than honorable conditions character of service. 

12.  His record is void of any documentation that shows he had lost time, resulting from an AWOL period or otherwise.

13.  On 22 October 1993, the ADRB denied his request for a discharge upgrade.

14.  He provides 2 third-party letters of support from his former company commander and battalion commander, in which both individuals strongly advocate for an upgrade in his discharge, from under other than honorable conditions discharge to an under honorable conditions (general) discharge.

15.  He further provides medical documentation, covering the period 27 July 1983 through 4 October 1983, which shows he underwent surgery on or about   27 July 1983, and he was treated for that condition, as well as various other conditions, throughout the summer and fall months of 1983.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a. 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 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.

   b. 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.

   c. 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.  

17.  According to the Manual of Court-Martial Article 121 of the UCMJ covers Larceny and Wrongful Appropriation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant contends the offenses for which he was charged, and for which his discharge in lieu of trial by court-martial was requested, were of the same nature, type, and period as those in which he was previously convicted by a separate court-martial.  This violated the double jeopardy clause under the 5th amendment of the U.S. Constitution.  This contention is rejected.

3.  The evidence of record shows the charges for which he requested discharge were for different violations than the ones for which he was convicted by SPCM. The original conviction by court-martial was for stealing currency on or about 9, 10, 17, and 30 September 1983.  The court-charges that led to his voluntary discharge were also for stealing checks and currency, but the offenses occurred on 10 July and 8 October 1983.  While they occurred within the same time frame, in relation to his overall period of service, they were not identical, did not overlap, and did not pose a double jeopardy challenge.  The evidence of record shows he was convicted by an SPCM for one set of charges, and a separate set of charges were later preferred against him for another set of violations.

4.  As for his hospitalization, he was hospitalized on 27 July to 4 October 1983.  However, the court-martial charges that led to his voluntary discharge were for offenses that occurred before (10 July) and after (8 October) his hospitalization.  

5.  He contends he admitted his guilt; however, his admission was used against him in his receipt of an under other than honorable conditions discharge.  The convening authority failed to consider his entire period of service.  He was appropriately punished for his wrongdoings and he sufficiently redeemed himself in the months following his court-martial.  This contention is rejected.

6.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

7.  The convening authority has broad discretion to determine the appropriate character of service, based on his or her interpretation of the severity of the violations and the Soldier's record of service.  Based on the applicant's record of indiscipline, the convening authority did not feel his service met the standards of acceptable conduct and performance of duty for Army personnel.  He also determined the applicant's misconduct rendered his service unsatisfactory.  The applicant has not submitted any evidence that shows the convening authority acted outside the scope of his authority in determining his character of service.

8.  Lastly, he contends the Board acted improperly in citing an AWOL period in its original Discussion and Conclusions section.  His record is void of any documentation that shows he had lost time, resulting from an AWOL period or otherwise.  While the comment was an incorrect reference in the original Record of Proceedings, its removal does not mitigate the severity of his recorded misconduct during his period of active military service, nor does it warrant a change in his discharge characterization.

9.  His post-service accomplishments are noted; however, they do not mitigate the seriousness of the misconduct during his period of active military service that resulted in his discharge.  In view of the foregoing, there is an insufficient basis for granting the 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110021695, dated 24 April 2012.




      _______ _  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)                                         AR20100015378



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007486



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1