BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130011118 


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 an upgrade of his discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states, in effect, that:

	a.  He had problems with his unit, but mainly with his first line supervisor, SFC H.  He kept everything bottled up and did not express his dislike for her because there was a job that still needed to be done.  He attests that SFC H talked bad about people and her subordinates to other senior noncommissioned officers (NCO) and then began instructing them to do certain things that they all knew were wrong and could get them into trouble.  On numerous occasions, SFC H instructed them to falsify documents by making photocopies of the Property Book Officer's signature onto them or by adding information on continuation pages prior to submitting the documents to the warehouse.

	b.  Due to continual late nights and weekends at work, he became highly stressed and depressed both at work and home.  This led him to drink which led to making bad decisions and ultimately to having an affair with one of his junior enlisted subordinates who also happened to be the wife of another Soldier who was deployed at the time.  He admitted this affair to his wife and she did not take it well.  When the Soldier's husband returned from deployment, he threatened the applicant, but his request for transfer to another unit was denied and he was forced to continue working with the disgruntled husband.  An investigation was conducted into the affair which resulted in the applicant losing rank as part of the punishment.  He was later informed that his subordinate had seduced him on purpose because she was mad at his wife for always bragging about what a good, devoted husband he was and her belief that he would never cheat on her with another woman.  She seduced him in order to prove that he is like every other man in the world and worst of all, she knew that she had a sexually transmitted disease and was glad that she had passed it onto him.

	c.  SFC H belittled him for getting caught cheating and said he should have been smart enough not to do it with one of his subordinates.  She then told him that if he wanted to act like a private, then she would treat him like one and then intensified her abusive treatment of him by taking away his authority and requiring him to perform menial tasks.

	d.  He started drinking more than ever before and stopped taking care of his appearance as a leader and a Soldier of the U.S. Army.

	e.  While cleaning a storage shed, he found a brand new laptop.  He checked the serial number on the laptop and realized it was one of several that SFC H had signed for.  The right thing to do was to take it to SFC H and let her know where he had found it, but at the time he felt so much hatred toward her that he did not care because he knew she was accountable for the laptop.  Soon after, he was informed that SFC H was talking bad about him and he was also confronted by the disgruntled husband again.  These two events really angered him and he wanted everyone who was messing with him to die and then he would kill himself as well.  He took the laptop home.

	f.  He told his wife he was tired and did not care what happened to him because they were not going to stop messing with him unless he fixed it himself. 
He told his wife that he loved her and his kids.  She then took the applicant to see his Alcohol and Substance Abuse Program (ASAP) counselor and told him what the applicant had said.  As a result, he was admitted to the hospital for observation and treatment in the psychiatric ward.  One day when his wife came to visit him in the hospital, she informed him that the military police (MP) had conducted a search of their home and found the laptop.

	g.  Two weeks later he was informed that he was being disenrolled from the ASAP and taken to the brig.  Later that day he was taken to the brig.  Within 5 days of being incarcerated, an attorney came to discuss the details of his situation with him and to tell him the procedures.  The attorney also reassured him that everything would be okay and there will be a scheduled day when they would meet again.  A couple days later they met and the attorney gave him the options of either going through court-martial proceedings (which he did not recommend) or signing a memorandum stating he was willing to be chaptered out of the Army.  He was advised that the charges being brought against him included:

* Communicating a threat
* Larceny
* Conspiracy
* Lying to a U.S. Army Criminal Investigation Command (CID) agent

	h.  He elected to sign the memorandum for separation and was out-processed and on a plane within 72 hours of his release from the brig.

	i.  Through daily prayer and a good nonjudgmental church family he began his healing and his deliverance.  Since his separation he:

* emailed an apology to the people whom he had threatened
* coordinated to talk to troubled kids at his old high school about the consequences of decisions and actions
* enrolled in college and is pursuing a degree
* is an active member of his church
* is attending anger counseling
* takes daily medication for anxiety/depression
* wants to be a motivational speaker to kids and Soldiers about choices and the actions that follow
* has moved on and become a better husband, father, son, and man

3.  The applicant provides a 3-page self-authored statement, two character reference letters, and an unofficial transcript as additional evidence with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 August 2001.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.  However, at the time of his separation he held the rank/grade of private/E-1.  He was trained in and awarded military occupational specialty 92Y (Unit Supply Specialist).

2.  The applicant's record contains the following documentation:

	a.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which documents his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on 15 December 2011 for wrongfully having a relationship with a Soldier under his supervision in violation of Article 92, UCMJ.

	b.  A Serious Incident Report which shows that on 11 January 2012 he was admitted to the hospital for homicidal thoughts and intentions to harm co-workers.  He was to be evaluated and remain at the hospital until cleared to report back to his unit.  It had not been determined yet if the current events had been driven by the current and ongoing CID investigation in relation to the theft of government property found at the applicant's residence during a search by CID.

	c.  A CID Form 94 (Agent's Investigation Report), dated 12 January 2012, which shows that while conducting a search of the applicant's residence, his wife and mother-in-law returned home from visiting him at the hospital and they both were irate toward all law enforcement officers (LEO) on scene.  His wife yelled about injustices and how her rights were being violated.  A special agent explained the scope of the search and the legal details involving a Search Authorization, but she did not calm down and insisted on explaining why she was visiting her husband in the psychiatric ward.  She explained that the applicant's chain of command was driving him crazy.  She also stated he had purchased a handgun within the past week and that the evening prior he was sitting in the parking lot outside his unit preparing to enter the building and kill several people.
She was able to talk him out of it and told him to come home, where she took the gun away from him.  She stated she now wished that she had never stopped him.  She stated she should have let him kill everyone in that building, and when he returned home from the hospital, she was not going to stop him again.  She could not provide the location of the weapon and it was not discovered during the search for the government computers.

	d.  A DA Form 2823 (Sworn Statement), dated 19 January 2012, wherein the applicant expressed his displeasure with his unit and confessed to misappropriating a government printer and laptop computer.  He told the investigating CID agent that he intended to keep the printer and laptop permanently and that he still intended to hurt or harm SFC H, the disgruntled husband, and the woman with whom he had the affair.

	e.  A CID Report of Investigation - Initial, dated 19 January 2012, which shows an investigation was initiated into the following allegations against the applicant:

		(1)  Larceny of government property (under investigation)

		(2)  Three counts of communicating a threat (under investigation)

		(3)  Conspiracy to commit larceny of government property

3.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 8 February 2012 he was discharged from the Army under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.

4.  On 17 August 2012, the applicant was informed that the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, had determined he was properly and equitably discharged and advised him that his request for a change in the character and/or reason of his discharge had been denied.

5.  The applicant provides:

	a.  a character reference letter rendered by the Senior Pastor of Him Only Ministries on 8 May 2013, wherein he states the applicant has been with them for about a year and had greatly contributed to their ministry in a vast number of ways and he was elated to share things with the applicant that will enhance his life and enable him to grow.  He opined that the applicant is a sound man with principles, aspirations and goals, and he shows great determination in making everything he is believing God for, come to fruition, and he is proud to be the applicant's pastor.

	b.  a character reference letter rendered by a supervisor at Henry County Virtual Campus on 29 May 2013, wherein she states that the applicant is a former student who recently returned to visit his former high school after serving in the military and moving back home with his family.  During a conversation, it became evident that her "at risk" students could benefit from the applicant's experiences and lessons learned in life.  During the session with the students he presented a very honest, heartfelt account of the decisions he made in life and the positive and negative consequences of those actions.  The students were very receptive and had many questions for the staff when he left.  It was a great opportunity for their students to learn valuable practical life lessons.  She feels the applicant had a positive impact on their students through his own hardships and the staff appreciates him volunteering his time with them.
	c.  an unofficial transcript which shows that he completed courses at Wallace Community College during the Fall 2012 and Spring 2013 terms.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally given to an individual who is discharged for the good of the service.

7.  Army Regulation 635-200, 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.

8.  Army Regulation 635-200, 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 contention that his record should be corrected by upgrading his under other than honorable conditions discharge was carefully considered and determined to lack merit.

2.  The applicant's accomplishments and desire for a fresh start since his discharge are duly noted.  However, a desire for self-improvement alone is not a basis for upgrading a discharge.  

3.  The evidence clearly shows he was a substandard Soldier who had a record of numerous disciplinary infractions.

4.  The evidence of record shows he was charged with the commission of numerous 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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 his overall record of service.

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)                                         AR20130011118





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ABCMR Record of Proceedings (cont)                                         AR20130011118



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