IN THE CASE OF:	

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150001169 


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 earlier request for an upgrade of his discharge under other than honorable conditions and removal of the Record of Proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ) from his military records.

2.  The applicant states:

* the Board is compelled by Title 10 of the U.S. Code to decide in his favor where the "consideration of evidence" is lacking documentary proof of his first instance of being absent without leave (AWOL)
* he claims he was not AWOL but rather returned late from vacationing
* his Official Military Personnel File (OMPF) does not contain any DA Forms 2627 (Record of Proceedings under Article 15, UCMJ)
* the law requires that all discharges be thoroughly documented beyond a reasonable doubt as opposed to resting on a preponderance of the evidence
* this notion is supported by the court cases –

* Winship, volume 397, U.S., page 358 (1970)
* Kousar versus Mueller, volume 549, Federal Supplement, 2d series, page 1194 (2008)
* Lopez, volume 95, Federal Appendix, page 1010, Federal Court of Appeals (2004)

* the Government provided him with counsel, which is governed by the standards of –

* Strickland versus Washington, volume 104, Supreme Court, page 2052 (1984)
* Restrepo versus Kelly, volume 178, Federal Reporter, 3d series, page 634, Court of Appeals, 2d series (1999)
* Henderson versus Frank, volume 155, Federal Reporter, 3d series, page 159, Court of Appeals, 3d series (1998)
* United States versus Cronic, volume 104, Supreme Court, page 2046 (1984)
* 5th and 6th Amendments to the U.S. Constitution

* a civil defendant is guaranteed the right to counsel in a quasi-judicial proceeding and is guaranteed effective assistance of counsel in such proceedings, especially when counsel has been supplied by the U.S. Government
* his Government-provided counsel's assistance was constitutionally inadequate and his strategy was objectively unreasonable
* counsel failed to investigate his record to discover the missing documentation pertaining to the Article 15 proceedings for AWOL prior to acceptance of a plea to a discharge
* those same missing documents were used against him in the threat of court-martial proceedings
* counsel misadvised him that if he voluntarily accepted a discharge plea, it would automatically be upgraded to a satisfactory discharge after 2 years
* the applicant was prejudiced by counsel's deficiencies
* the Board previously denied his application due to his acceptance of nonjudicial punishment (NJP) under Article 15 on two occasions, although the Board had no such documentation of the actual Article 15 proceedings and the law requires discharges to be thoroughly documented
* counsel's advice was confirmed by the Board to be false information and it compelled him to make an ill-informed decision to accept a discharge when he otherwise would have elected a court-martial hearing where the outcome would have been in his favor due to the lack of documentation
* he has been stigmatized as a result of counsel's poor advice and subjected to the loss of property, entitlements, and job acquisitions
* he puts the Board on notice that it is creating a miscarriage of justice by violating his constitutional rights with regard to civil judicial remedies on appeal

3.  The applicant provides no additional evidence.

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 AR20140007168 on 4 December 2014.

2.  The applicant advances the arguments that he was treated unconstitutionally at the time of his discharge, missing documentation was the faulty basis of his discharge, and his Government-provided counsel provided poor advice, which are considered new arguments not previously considered by the Board warranting consideration at this time.

3.  The applicant enlisted in the Regular Army on 29 July 1998.  The highest rank/grade he attained was private/E-2.

4.  His records contain multiple DA Forms 4187 (Personnel Action), a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), and a DD Form 616 (Report of Return of Absentee), all of which were signed by authorized officials verifying his duty status was changed as follows:

* on 17 December 1998, his duty status changed from present for duty (PDY) to AWOL
* on 4 January 1999, his duty status changed from AWOL to PDY
* on 8 March 1999, his duty status changed from PDY to AWOL
* on 8 March 1999, his duty status changed from AWOL to dropped from the rolls (DFR) due to being AWOL during the punishment phase of field grade-imposed NJP under Article 15, UCMJ
* on 10 March 1999, a DD Form 553 was issued alerting local, State, and Federal law enforcement authorities of his deserter/absentee status
* on 26 July 1999, he was apprehended by civilian authorities
* on 27 August 1999, his duty status changed from DFR to returned to military control

5.  His OMPF does not contain a copy of the DA Form 2627 from the NJP he received as a result of his first documented instance of AWOL from 17 December 1998 through 4 January 1999.

6.  A DD Form 458 (Charge Sheet), dated 10 September 1999, shows he was charged with violating the UCMJ for being AWOL beginning 8 March 1999 until a future date as yet unknown as he was in a DFR status at the time the charges were preferred.  A subsequent DD Form 458, dated 1 September 1999, shows he was charged with violating the UCMJ for being AWOL from 8 March 1999 until on or about 27 August 1999.

7.  On 1 September 1999, he consulted with legal counsel and voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He was advised of the basis for his contemplated trial by court-martial, admitted his guilt, indicated he understood he could receive a discharge under other than honorable conditions and the discharge would have a significant effect on his eligibility for veterans' benefits.  Included with his request for discharge in lieu of trial by court-martial packet is his memorandum, subject:  Admission of AWOL for Administrative Purposes, wherein he stated he knowingly, willingly, and voluntarily declared he was AWOL from the U.S. Army from on or about 8 March 1999 to on or about 27 August 1999.  He further acknowledged he was making his request of his own free will and he had not been subjected to any coercion whatsoever by any person

8.  The chain of command recommended approval of his discharge under other than honorable conditions and the separation authority approved the request on 14 July 2000.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 27 September 2000 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He was credited with 1 year, 7 months, and 19 days of net active service this period.  His lost time during this period amounted to 190 days.

9.  The applicant's records are void of documentation and he has not provided any showing he was not adequately represented by counsel, given poor advice, or any of his legal rights were violated during the discharge process.

10.  On 10 August 2011, he applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  The ADRB convened on 24 February 2012 and, after carefully examining the applicant's record of service, determined his discharge was both proper and equitable and voted to deny relief. 
On 14 March 2012, the applicant was notified of the bADRB’s decision.

11.  On 4 December 2014 after carefully considering the evidence of record and the evidence presented by the applicant, the ABCMR denied his request for an upgrade of his discharge under other than honorable conditions and removal of Article 15s from his military records.  The ABCMR determined his records did not contain copies of Article 15s.  The ABCMR also determined his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized sentence 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.

12.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority action on an appeal.

	b.  Paragraph 3-37b(1) states for Soldiers in the rank of specialist or corporal and below (prior to punishment), the original DA Form 2627 will be filed locally in unit NJP or unit personnel files.  Such locally-filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his prior request for an upgrade of his discharge under other than honorable conditions and removal of the Record of Proceedings under Article 15 of the UCMJ from his military records was carefully considered.

2.  His OMPF does not contain a copy of the Record of Proceedings under Article 15.  For Soldiers of the applicant's rank, regulatory guidance requires the local unit filing of such proceedings, as opposed to filing in the OMPF.  His request for removal of this document from his OMPF is without merit as there is no such document to remove.

3.  Despite his assertion to the contrary, the lack of the DA Form 2627 following his initial instance of AWOL does not suggest there is no documentation of his incidents of AWOL, which are very well documented in his military records.  His records contain four DA Forms 4187 changing his duty status from PDY to AWOL to DFR and returned to military control; one DD Form 553 alerting local, State, and Federal law enforcement authorities of his deserter/absentee status; one DD Form 616 reporting his return as an absentee; two charge sheets; and his own signed memorandum admitting his AWOL status.

4.  His initial discharge packet and subsequent requests to upgrade his discharge did not hinge solely on his receipt of documented NJP or lack thereof, but included a consideration of his overall length and qualify of service combined with his very well documented counts of AWOL.  His records clearly show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.

5.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

6.  There is no evidence in the available records and he did not provide any evidence to support his contention that his voluntary request for discharge in lieu of trial by court martial was improperly administered or that he was poorly advised by counsel.  Although he contends he was informed he would be provided an opportunity to upgrade his discharge after 2 years, the U.S Army has never had a policy whereby a discharge was automatically upgraded.  His statements alone do not overcome the evidence of record and the presumption of regularity in the processing of his discharge.

7.  A thorough review of his records determined the multiple court decisions he referenced lack sufficient similarity and bear no relevance to his case.

8.  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, there is no basis for granting him 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 AR20140007168, dated 4 December 2014.



      _______ _   _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)                                         AR20150001169



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ABCMR Record of Proceedings (cont)                                         AR20150001169



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