BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140007850 


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 requests that his under other than honorable conditions discharge be upgraded. 

2.  The applicant states he previously requested his discharge be upgraded to a general discharge but he is now requesting that it be upgraded to honorable.  He is providing a new argument that was not previously considered as outlined in the memorandum of support from his counsel.  In seeking an upgrade in the past, he never had the assistance of counsel and never understood the legal defects that led to the consequences with which he has lived for over 25 years.  

3.  The applicant provides:

* a statement from counsel
* a statement from himself
* two Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP)
* General Court-Martial Record of Trial, dated 19 November 1982
* three statements, dated between 15 December 1982 and 27 August 1983
* a statement, dated 9 February 1983
* two general courts-martial, dated 15 February 1983 and 9 March 1988 
* four letters, dated between 27 June 1983 and 1 December 2011
* five U.S. Army Court of Military Review (ACMR) and/or the U.S. Court of Military Appeals (COMA) cases, dated between 30 May 1984 and 31 July 1987
* two memoranda, dated 13 August 1987 and 20 January 1988
COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE

As a new argument, the applicant's counsel states the applicant's discharge should be upgraded and his eligibility for medical and other benefits should be restored because:

	a.  His discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial was a nullity because it was not issued in lieu of court-martial as no court-martial was pending and no charges were outstanding when he agreed to the discharge (emphasis added).  The discharge was legally invalid because explicit regulatory requirements of Army Regulation 635-220, chapter 10, were not met and incomplete and misleading advice of his assigned counsel caused him to needlessly apply for a discharge that carried life-long penalties.  None of the penalties would have been imposed if he had received competent or no legal advice.

	b.  Of the two charges that were originally brought against the applicant, one was dismissed by the ACMR and the COMA set aside both charges and remanded the case.  After remand, no rehearing was ordered; the original charges ceased to exist as a matter of law after 120 days passed without further action, no new court-martial was convened, and no new charges were referred.  The fact that charges against the applicant had been dropped was then formalized by a general court-martial order noting further action against him was "not practical" and dismissing any and all charges.

	c.  Army Regulation 635-200, chapter 10, requires that prior to submitting a request for a chapter 10 discharge, a service member must be provided specific advice because the consequences of such a discharge may affect basic rights.  The regulation states specific issues must be explained and discussed to include the elements of the offense(s) charged, burden of proof, possible defenses, possible punishments, provisions of chapter 10, requirements for volunteerism, type of discharge normally given, rights regarding withdrawal of the chapter 10 request, loss of Department of Veterans Affairs (VA) benefits, and the prejudice in civilian life based upon the characterization of the discharge.  Counsel may advise the Soldier regarding the merits of the separation action and the offense pending against the Soldier. 

	d.  In the applicant's case, not only did assigned counsel never meet the applicant in person, he failed to discuss the merits of the case or the options available to him, in violation of regulatory requirements.  Moreover, his counsel's advice that the alternative to failing to seek a chapter 10 discharge was a rehearing on criminal charges was wrong as a matter of law.  The applicant was never advised by his legal counsel that because one charge against him had been dismissed by the ACMR and all charges set aside by the COMA, any retrial was highly unlikely.  Nor was he advised that the doubts expressed by reviewing authorities and the ACMR about the veracity of the Government's only witness further suggested that his case would be dismissed in its entirety, as it ultimately was.  He was not advised that a rehearing on the one charge that had been set aside but not dismissed would soon be legally barred if the convening authority did not act promptly to seek a rehearing.  Instead, he was advised that an administrative discharge was a way for the case to be settled, he would receive much of his back pay, and he could avoid a trip to Fort Leavenworth.

	e.  In November 1987, his legal counsel sent him a three-page preprinted request for a chapter 10 discharge and urged the applicant to sign it and return it. The preprinted form, which does not constitute legal advice, did not address key considerations the regulation required be discussed with prospective applicants to ensure an informed decision is made about volunteering for a discharge that has significant adverse consequences.  The applicant subsequently signed the request and returned the form.  On 20 January 1988, more than 5 months after the case had been remanded, his counsel then submitted the request.  Less than a month later, despite the fact that no court-martial charges were pending, the chapter 10 request was approved and he was given an under other than honorable conditions discharge.

	f.  On 19 November 1982, the applicant, a specialist four (SP4) at the time, was convicted of larceny and wrongful disposition of an M-3 submachine gun by a general court-martial convened at Fort Hood, TX.  The case was based solely on the testimony of two witnesses whose questionable credibility was subsequently noted by both local and appellate reviewing authorities.

	g.  In post-trial proceedings, his company commander recommended the sentence imposed not be approved because of the strong possibility that he was innocent.  The ACMR found that had the members of the court-martial heard evidence about the key witness they might have returned a verdict of not guilty and dismissed the charge of wrongful disposition of the submachine gun.  On further review, the COMA, citing additional case law overturning convictions in which the prosecution failed to disclose probative, relevant evidence, set aside all charges and remanded the case to the ACMR for further action.  

	h.  At trial, the evidence had been contradictory with witnesses who saw the same events as the two prosecution witnesses testifying they did not see the same thing.  In addition, eight character witnesses, including the applicant's direct supervisors, testified as to his truthfulness, excellence as a Soldier, his outstanding service, and that they would proudly serve with him again.  By contrast, the supervisor of the first witness, Private First Class (PFC) DMG, testified she was not a truthful person and he would not believe her under oath.  The other witness, Mr. OAC, a vendor on base, testified the applicant traded him the weapon for snack foods.  Mr. OAC was former military and had been convicted of several violations of Article 92, Uniform Code of Military Justice (UCMJ).  Although the prosecution had a legal duty to do so, this information was not disclosed to his defense counsel.

	i.  After the trial, Mr. OAC recanted his testimony in a letter saying he lied during the court-martial proceedings.  The typed but unsigned letter was sent to trial counsel, the military judge, the convening authority, and the applicant, and states how and why he gave false testimony.

	j.  On appeal, the ACMR overturned the conviction for wrongful disposition finding the charge was based solely on Mr. OAC's testimony and the Government failed to disclose his criminal record or address his credibility.  Because his testimony also related to the larceny charge, the applicant petitioned the COMA to overturn that charge as well.  The COMA set aside the ACMR decision and returned the case for further review.  The ACMR then set aside the findings of guilt and the sentence and remanded the case to the Commander (CDR), Fort Leavenworth, KS. 

	k.  The remand took place on 13 August 1987, nearly 5 years after the alleged offense.  The memorandum from The Judge Advocate General (TJAG) to the CDR, Fort Leavenworth, expressly noted that if a rehearing were ordered it would have to conform to speedy trial requirements, citing United States v. McFarlin, a case decided by the COMA where all charges were dismissed, holding that following appellate reversal of the conviction of a non-confined individual, the rehearing must be held within 120 days of the date the convening authority is notified of the final decision authorizing a rehearing.

	l.  The record returned to the CDR, Fort Leavenworth, included findings of legal errors by both of the highest military appellate courts and expressed doubts about the credibility of the prosecution's only witness.  Notwithstanding TJAG's admonition to meet speedy trial requirements, the CDR took no action for 7 months.  After 4 months had elapsed, the CDR was legally barred from ordering a rehearing.  On 9 March 1988, after 7 months, he issued an order finding a rehearing was no longer practical and dismissed all charges against the applicant.  He further directed that all rights, privileges, and property of which he had been deprived by his court-marital be restored.  However, the order did not restore all of his rights, privileges, and property as it was purported to do because the Army had issued him a chapter 10 discharge in the interim.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous reconsideration of the applicant's case by the ABCMR in Docket Number AR20110010668, on 1 December 2011.  His case was first considered by the ABCMR in Docket Number AR20100015858, on 7 December 2010.

2.  Counsel presents a new argument that will be addressed.

3.  The applicant enlisted in the Regular Army on 23 January 1979.  He received nonjudicial punishment under the provisions of Article 15, UCMJ, on:

* 11 April 1979, for one specification of wrongfully possessing marijuana
* 5 May 1980, for one specification each of behaving in a disrespectful manner towards a commissioned officer and for disobeying a lawful order

4.  On 25 September 1981, he was promoted to the grade/rank of SP4.  He was assigned to Company B, 27th Maintenance Battalion, 1st Cavalry Division, Fort Hood, TX.

5.  On 19 November 1982, he was convicted by a general court-martial of one specification each of:

	a.  Violation of Article 108, UCMJ, in that he did, on or about 16 September 1982, without proper authority, dispose of by bartering to Mr. XXX one M-3, submachine gun, military property of the United States.

	b.  Violation of the Article 121, UCMJ, in that he did, on or about 16 September 1982, steal one M-3, submachine gun, the property of the U.S. Army.

6.  He was sentenced to confinement for 2 years, a forfeiture of all pay and allowances, reduction to private/E-1, and a bad conduct discharge.  He was subsequently confined at the U.S. Disciplinary Barracks (USDB), Fort Leavenworth.  On 19 July 1983, he was placed on parole.

7.  On 30 May 1984, the ACMR set aside the findings of guilty of the charge of disposing by bartering of a submachine gun and dismissed the specification (emphasis added).  The finding of guilty of the charge of stealing the submachine gun was affirmed and only so much of the sentence was affirmed that provided for confinement for 1 year, a forfeiture of all pay and allowances, reduction to 
E-1, and a bad conduct discharge.

8.  On 19 November 1984, he was placed on excess leave while awaiting the appellate review.

9.  On 23 October 1986, the COMA granted the applicant a petition for review. The case was remanded back to the ACMR, and on 31 July 1987 the ACMR set aside the finding of guilty and the sentence on the remaining court-marital charge of stealing the submachine gun and authorized a rehearing on the larceny and wrongful disposition charges.

10.  In a memorandum, dated 13 August 1987, the TJAG notified the CDR, Fort Leavenworth, that the ACMR set aside the findings of guilty on the court-martial charge of the wrongful disposition of stealing the submachine gun and authorized a rehearing on the larceny and wrongful disposition charge.  The TJAG memorandum stated, in part:

	a.  If it was determined a rehearing could be more effectively accomplished by another general court-martial convening authority, he may transfer the case by agreement with that authority.

	b.  If it was determined a rehearing was impracticable, he was requested to publish a supplemental order promulgating the results of appellate review, dismissing the charges, and restoring the rights, privileges, and property of which the accused was deprived as a result of the sentence.  

	c.  As for the applicant's right to a speedy rehearing, see United States v. McFarlin.  This was a case wherein charges were dismissed against an individual when it was determined the rehearing had not been held within 120 days of the date the convening authority was notified of the final decision authorizing a rehearing.  

11.  It is unclear when the memorandum notifying him of the decision authorizing a rehearing of the applicant's court-martial was received by the CDR, Fort Leavenworth.

12.  It appears the court-martial convening authority subsequently preferred charges against the applicant for the wrongful disposition of a submachine gun in addition to the larceny charge that was still pending against him as authorized in the 31 July 1987 decision by the ACMR.  This charge sheet is not available for review with this case.

13.  It is unclear when the applicant was first notified that his sentence of guilty had been set aside, he had been authorized a rehearing on the court-martial charge pending against him for stealing the submachine gun and that the court-martial charge of the wrongful disposition of a submachine gun had been preferred against him.

14.  On 17 November 1987, the USDB, Fort Leavenworth, issued the applicant a new military identification card as his previous one had expired.   

15.  The applicant's records contain and counsel provided a letter to him, dated 30 November 1987, wherein defense counsel, Fort Leavenworth, stated, in part:

	a.  The applicant's court-martial had been sent to Fort Leavenworth for a rehearing.  It was possible that his case may be settled by a chapter 10 and a dismissal of charges; he would also receive much more of his back pay as a result of his case being overturned.

	b.  He was enclosing a copy of the chapter 10 and urged the applicant to sign the chapter 10 request.  In addition to the benefits already outlined, he would receive no Federal conviction and would not have to return to Fort Leavenworth for the processing of the chapter.  If he elected the rehearing, he would not receive the outlined benefits, except for some of his back pay, and he would be required to return to Fort Leavenworth to be re-tried.  

	c.  His legal counsel further stated, if he elected to submit the chapter 10 then he needed to sign the enclosed document.  His legal counsel provided his phone numbers in case the applicant had any questions regarding the court-martial/chapter 10 actions.

16.  In a memorandum, dated 20 January 1988, to the CDR, Fort Leavenworth, the applicant stated, in part:

	a.  He was voluntarily requesting to be discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He understood that he may request a discharge for the good of the service because the following charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge:

* Violation of Article 108, UCMJ, and its Specification (Wrongful Disposition of Government property)
* Violation of Article 121, UCMJ, and its Specification (Larceny)

	b.  He was making the request of his own free will without coercion from anyone and that he had been advised of the implications attached to his request. By submitting the request, he acknowledged that he understood the elements of the offense charged and that he was guilty of the charge or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorably discharge.  He stated that under no circumstances did he desire further rehabilitation and had no desire to perform military service.  

	c.  He further stated that prior to completing the form, he was afforded the opportunity to consult with appointed counsel for consultation who had fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offense, the facts which must be established by competent evidence beyond a reasonable doubt to sustain the finding of guilty, the possible defenses which appeared to be available at that time, the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge.

	d.  He further acknowledged that he understood if his request for discharge was accepted, he may be discharged under other than honorable conditions.  He had been advised and understood the possible effects of an under other than honorable conditions discharge and, that as a result of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible of many or all benefits administered by the VA, he may be deprived of his rights and benefits as a veteran under both Federal and state law.  He further understood, he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

	e.  The applicant signed the request as did his defense counsel.

17.  On 11 February 1988, his immediate and senior commanders recommended approval of the applicant's request for a discharge.  Each commander stated he had considered the court-martial charges against the applicant and felt the Army would best be served by approving his request for a discharge under the provisions of Army Regulation 635-200, chapter 10. 

18.  On 18 February 1988, the approving authority approved his request and directed that he be discharged under other than honorable conditions.  On 18 February 1988, he was discharged accordingly.

19.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows was discharged under the provisions of Army Regulation
635-200, chapter 10 - for conduct triable by court-martial, with an under other than honorable conditions characterization of service.  

20.  General Court-Martial Order Number 3, dated 9 March 1988, issued by Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, dismissed the court-martial charges against the applicant that had been set aside by the ACMR.  It stated a rehearing sentence was impracticable.  His request for a discharge under the provisions of Army Regulation 635-200 has been approved on 18 February 1988.  All rights, privileges, and property of which he had been deprived as a result of the court-martial sentence that was set aside would be restored.

21.  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 may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

22.  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.

23.  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 available evidence confirms the applicant was initially found guilty by a general court-martial of the wrongful disposition of government property and of stealing government property.  He was sentenced to confinement for 2 years, a forfeiture of all pay and allowances, reduction to private/E-1, and a bad conduct discharge.  In 1984, the ACMR set aside the findings of guilty of the charge of the wrongful disposing of a submachine gun and dismissed the specification.  The finding of guilty of the charge of stealing the submachine gun was affirmed and only so much of the sentence was affirmed that provided for confinement for 1 year, a forfeiture of all pay and allowances, reduction to E-1, and a bad conduct discharge.

2.  In 1987, the ACMR set aside the finding of guilty and the sentence on the remaining court-martial charge of stealing the submachine gun and authorized a rehearing on both the larceny and wrongful disposition charges.  The CDR, Fort Leavenworth was notified accordingly.

3.  Notwithstanding counsel's contention that there were no court-martial charges pending against the applicant when he submitted his request for a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, the evidence of record confirms the ACMR had only dismissed the charge of the wrongful disposition of government property.  The court-martial charge of larceny had not been dismissed and was still pending against the applicant.

4.  In addition to the larceny charge, it appears the court-martial convening authority subsequently preferred charges against the applicant for the wrongful disposition of government property, as had been authorized by the ACMR, and was prepared to conduct a retrial on both court-martial charges.  This is supported by the fact that in the request the applicant submitted for a chapter 10 discharge, he acknowledged that he understood that court-martial charges had been preferred against him for both the wrongful disposition of government property and for larceny.

5.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  In his request, he admitted that he was guilty of the charges pending against him.  

6.  Counsel's contention the original court-martial charges ceased to exist as a matter of law after 120 days passed without a retrial is noted.  However, in the cited case, United States v. McFarlin, the COMA set aside the retrial findings of guilty and the sentence and dismissed charges because the appellant had the right to a speedy trial and the rehearing should have been held within 120 days of the date the convening authority was notified of the final decision authorizing a rehearing.  It did not state the court-martial charges ceased to exist after 120 days from the notification date.  In this case, and in the light least favorable to the Government, the 120 days would have meant the applicant had to be tried on or before 11 December 1987.  However, the time from 30 November 1987 when military defense counsel dispatched correspondence to the applicant recommending he submit a chapter 10 until 18 February 1988 when the commencing authority acted on his chapter 10 request was defense delay and thus is not chargeable to the Government for speedy trail purposes.  

7.  Had the convening authority disapproved the applicant's chapter 10 request, the Government would have had an additional 80 days to bring him to trial.  Further, the 9 March 1988 order promulgating the convening authority's decision did not state that a rehearing on the merits of the case was impracticable but rather a rehearing on sentence was impracticable.  The Government in no way stated that it would be unable to convict the applicant at court-martial.  It stated a rehearing on sentence was impracticable which was true given the fact that his sentence on rehearing could not be greater than his original sentence and his term of confinement had already expired.  By submitting a chapter 10 request, he avoided a potential conviction as well as further disruption to his life over 5 years after he was first convicted.

8.  His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  There was no error or injustice.

9.  In view of the foregoing, the applicant is not entitled to 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 that the overall merits of this case are insufficient as a basis to amend the decisions of the ABCMR set forth in 





Docket Number AR20100015858, dated 7 December 2010 and Docket Number AR20110010668, dated 1 December 2011.



      _______ _   _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)                                         AR20140007850



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ABCMR Record of Proceedings (cont)                                         AR20140007850



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