IN THE CASE OF

		BOARD DATE:	    6 May 2014

		DOCKET NUMBER:  AR20130015450 


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 under other than honorable conditions discharge. 

2.  The applicant states: 

	a.  He wants to obtain a better discharge in order to provide his family with a better quality of living by first obtaining a good change in the categorization of his discharge.  He now presents some evidence according to the military proceedings and Article 32 that he felt was self-intimidating and prejudicial.  Charges in his case were preferred on 31 January 2005 and witness statements were taken on 1 February 2005.  That was highly unusual in a proceedings process of investigation and a discriminative process to a suspect.  On 
22 January 2005, the U.S. Army Criminal Investigation Command (also known as CID) was conducting a rape allegation against him and the allegations were made by another female second lieutenant (2LT).  After CID conducted their investigation, they gave him a release.  He was never arrested.  He was only a suspect in a rape allegation and only he was treated as a suspect according to her allegation.  They did not investigate both of them as an individual investigation despite both being un-separated.  The investigation started as a rape allegation.  

	b.  After 22 January 2005, he called his Training, Advising, and Counseling (TAC) officer, captain (CPT) Caxxxxno, who told him to report on Monday for graduation practice.  So, he (the applicant) went to the graduation practice, but Major Hxxl immediately gave instructions to put him out of everything related to graduation.  The reason was that he (the applicant) was under investigation, although he was not charged or convicted (presumption of innocence, right?).  They sent him to his room for more than a week doing nothing.  During that time the prosecutor made the investigation on the case only against him.  They made a lot of mistakes during the process, but he cooperated with all requirements.  He was scared and separated from everything related to his classmates and graduation processes, doing nothing and just walking around.  Finally, after Officer Basic Course graduation without him and after witness testimonial was taken, they called him to charge him for rape, sodomy, and adultery.  

	c.  He went to the Article 32 proceedings and after the final report, the investigating officer recommended dropping the charge of rape.  He also recommended changing the charge to sodomy by consent because he understood that enough evidence was there to determine a consensual act and adultery, because he was married at the time of the action.  His wife was there during the trial process and she didn’t have the interest to proceed with the adultery [charge].  He requested his records from school that were taken from CPT Caxxxxno under instructions from Major Hxxl.  They strongly denied him the records pertaining to school and his certificate; they told him that never will happen.  They gave him the opportunity to go to the board of officers but he said not in Virginia.  He was very embarrassed due to everything that happened and the treatment on post.  He requested resignation instead of a court-martial. 

	d.  He was a police officer with a “reluctant” record, proud of serving his country twice as a National Guard and State Police Officer.  His personal records are his best recommendations of all actions taken in his life.  He only had that problem at Fort Lee, but the rest of his actions are from excellent public service.  He hopes someday he can talk to his sons and explain that some situations under alcohol mark a person in a permanent manner.  He hopes the Board would understand his situation and give him the opportunity to shine in his life again. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Forms 4856 (Developmental Counseling Form)
* DA Form 1059 (Service School Academic Evaluation Report) and assessment counseling 
* Certificate of Affiliation
* DD Form 457 (Investigating Officer's Report), findings and recommendations
* DD Form 458 (Charge Sheet)
* Article 32 investigation – summary of proceedings
* Multiple certificates of completion
* Letters of support

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 13 April 2004. 

3.  He entered active duty on 26 September 2004.  He was assigned to Company E, 244th Quartermaster Battalion, Fort Lee, VA, for completion of the officer basic course. 

4.  On 21 January 2005, a party was held for new and graduating students of the Quartermaster Officer Basic Course.  A lieutenant (2LT S---h) alleged the applicant had raped her. 

5.  On 31 January 2005, court-martial charges were preferred against the applicant for one specification of rape, one specification of committing sodomy, and one specification of wrongfully having sex with another woman not his wife.  

6.  In early February 2005, an Article 32 hearing was held in the matter of U.S. vs [Applicant].  After examining all available evidence and testimony presented, the investigating officer recommended the applicant be tried by a general court-martial (GCM).  He determined: 

* Violation of Article 120: there was no reasonable ground to believe the applicant committed the offense of rape as alleged
* Violation of Article 125: there was reasonable ground the applicant committed sodomy against 2LT S---, by force and without her consent
* Violation of Article 13: there was reasonable ground the applicant wrongfully had sexual intercourse with 2LT S---h, a woman not his wife 
7.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain: 

	a.  DA Form 1059, dated 25 January 2005, that shows he was administratively relieved from the Quartermaster Basic Officer Course due to disciplinary reasons. 

	b.  Orders 129-0500, issued by Headquarters, U.S. Army Combined Arms Support Center, Fort Lee, VA, on 9 May 2005, reassigning him to the transition center for separation outprocessing effective 25 May 2005. 

	c.  A duly-constituted DD Form 214 that shows he was discharged on 11 May 2005, under the provisions of paragraph 3-13 or 3-15, Army Regulation 600-8-24 (Officer Transfers or Discharges), in lieu of trial by a court-martial with an under other than honorable conditions characterization of service.  He completed 
7 months and 16 days of active service. 

8.  On 26 January 2007, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable.  The ADRB voted unanimously to deny him an upgrade of his discharge. 

9.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve component (RC) and discharge functions for all officers on active duty for 30 days or more.  Chapter 3 prescribes the tasks, rules, and steps for processing voluntary resignations.  Paragraph 3-13, rules for processing resignation for the good of the Service in lieu of general court-martial, states an officer may submit a resignation for the good of the Service (RFGOS) in lieu of GCM under the following circumstances (cannot submit unqualified resignation): (1) Court-martial charges have been preferred against the officer with a view toward trial by GCM; or the officer is under a suspended sentence of dismissal.

	a.  Honorable discharge:  An officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer.  

	b.  General, under honorable conditions discharge:  An officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Certain discharges under the provisions of chapter 3 of Army Regulation 600-8-24 are voluntary requests for discharge/resignation for the good of the service in lieu of trial by court-martial.

2.  Although the complete facts and circumstances are not available for review with this case, and in the absence of evidence to the contrary, the applicant is presumed to have voluntarily, willingly, and in writing, requested resignation from the Army for the good of the service in lieu of trial by a GCM.  He could have requested trial by the GCM if he felt he was innocent.

3.  Rather than facing the consequences of a trial by court-martial, the applicant appears to have submitted his resignation for the good of the service, in lieu of trial by court-martial.  He had full knowledge of the consequences of this act.  Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.  

4.  All requirements of law and regulation were presumably met and his rights appear to have been fully protected throughout the separation process.  Further, his discharge accurately reflects the misconduct for which he requested discharge.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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 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)                                         AR20130015450





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ABCMR Record of Proceedings (cont)                                         AR20130015450



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