IN THE CASE OF: BOARD DATE: 14. June 2016 DOCKET NUMBER: AR20160004923 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14. June 2016 DOCKET NUMBER: AR20160004923 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 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. IN THE CASE OF: BOARD DATE: 14. June 2016 DOCKET NUMBER: AR20160004923 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. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court for the District of Columbia. The Court directs the ABCMR to reconsider the applicant's request for correction of his records (an upgrade of his under other than honorable conditions discharge). Specifically: a. Determine whether the applicant received the legal advice specifically required by Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). b. Determine whether the applicant's administrative discharge was issued in lieu of court-martial or whether at the time the administrative discharge was issued a rehearing before a court-martial would have been legally barred, and specifically whether charges had been referred to a convened court-martial and if not, whether an administrative discharge in lieu of court-martial was legally permissible. 2. The applicant filed a complaint against the Army seeking a correction of his military records. He was discharged on 18 February 1988 under the provisions of chapter 10, AR 635-200, in lieu of trial by court-martial with an under other than honorable conditions discharge. 3. The Court provided the administrative record. Enclosure 2 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 23 January 1979 and he held military occupational specialty 63B (Light Wheel Vehicle/Power Generation Mechanic). He attained the rank/grade of specialist four/E-4. 2. On 11 April 1979, at Fort Leonard Wood, MO, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for one specification of wrongfully possessing marijuana. His punishment consisted of a forfeiture of pay and a period of confinement at the Correctional Custody Facility (CCF). 3. On 5 May 1980, at Fort Ord, CA, he again accepted NJP under the provisions of Article 15 of the UCMJ for one specification each of behaving in a disrespectful manner towards a commissioned officer and for disobeying a lawful order. His punishment consisted of a reduction to pay grade E-2 and confinement at CCF for 30 days. 4. He served in Korea from on or about 23 February 1981 to 18 November 1982. He was promoted to the rank of specialist four/E-4 on 25 September 1981. Following his tour in Korea, he was reassigned 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: * 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 Government * 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. The Court sentenced him 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 U.S. Army Court of Military Review set aside the findings of guilty of the charge of disposing by bartering 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 pay grade 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 U.S. Court of Military Appeals granted the applicant a petition for review. The case was remanded back to the U.S. Army Court of Military Review, and on 31 July 1987, the U.S. Army Court of Military Review 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 the larceny and wrongful disposition charges. 10. In a memorandum, dated 13 August 1987, The Judge Advocate General (TJAG) notified the Commander, Fort Leavenworth, that the U.S. Army Court of Military Review 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 the 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 Commander, Fort Leavenworth. 12. Although the DA Form 458 (Charge Sheet) is not available for review, 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 U.S. Army Court of Military Review. 13. It is unclear when the applicant was first notified that his sentence of guilty had been set aside, that 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. 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 enclosed 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 request for discharge 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. 15. By memorandum, dated 20 January 1988, to the Commander, 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 AR 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 dishonorable 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 for many or all benefits administered by the Veterans Administration (VA), he may be deprived of his rights and benefits as a veteran under both Federal and state laws. 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. 16. On 11 February 1988, the applicant's 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 AR 635-200, chapter 10. 17. On 18 February 1988, the approving authority approved the applicant's voluntary request for discharge and directed that he be discharged under other than honorable conditions. On 18 February 1988, the applicant was discharged accordingly. 18. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows was discharged under the provisions of AR 635-200, chapter 10 - for conduct triable by court-martial, with an under other than honorable conditions characterization of service. This form shows he was credited with 9 years and 26 days of active service, of which 1,187 days (from 19 November 1984 to 18 February 1988) was excess leave. It also shows he was awarded or authorized the: * Army Good Conduct Medal (1st Award) * Overseas Service Ribbon * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar 19. General Court-Martial Order Number 3, issued by Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, on 9 March 1988, dismissed the court-martial charges against the applicant that had been set aside by the U.S. Army Court of Military Review. It stated a rehearing on sentence was no longer practicable. His request for a discharge under the provisions of AR 635-200 had 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. REFERENCES: 1. AR 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. a. 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. b. 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: 1. The evidence shows the applicant was convicted 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. 2. In 1984, the U.S. Army Court of Military Review 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 pay grade E-1, and a bad conduct discharge. 3. In 1987, the U.S. Court of Military Review 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 Commander, Fort Leavenworth was notified accordingly. The U.S. Court of Military Review 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 other words, more than 5 years later, through a series of appellate decisions, his case was overturned. The Judge Advocate General returned the case to the General Court-Martial Convening Authority (GCMCA) at Fort Leavenworth, where the applicant had served his confinement, with authorization to retry the case, transfer the case to another GCMCA for trial, or dismiss the case if a rehearing was impracticable. 5. 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 U.S. Court of Military Review, 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 court-martial charges had been preferred against him for both the wrongful disposition of government property and for larceny. 6. In response to correspondence from military defense counsel, the applicant submitted a chapter 10 request, which the GCMCA accepted. Although the charge sheet is not available, the fact remains that the applicant (a) was still pending a court-martial charge and (b) he voluntarily submitted a chapter 10 packet, which is only used when court-martial charges have been preferred. 7. The advantage to the applicant by the submission of such a request was that he would no longer risk having a federal conviction should the Army successfully prosecute the case and he would be entitled to a certain amount of back pay and allowances. The advantage to the Army was that it would not expend resources on a re-trial where the sentence, especially the amount of confinement, could not be increased and had in fact expired during the appellate process. 8. The GCMCA did not dismiss the charges and he did not state that re-trial on the merits was impracticable, only that re-trial on the sentence was impracticable. Accordingly, the applicant got the benefit of his bargain. Defense counsel was not ineffective. The preponderance of the evidence shows the charges were, in fact, extant. The Army did not violate the speedy trial clock since it was tolled while the defense pursued an alternate disposition, i.e., the chapter. 9. Discharges under the provisions of AR 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. He did in fact receive sufficient legal advice that is required by the governing regulation for this chapter. 10. 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. 11. There were four issues raised by counsel to the Court: speedy trial, insufficient legal advice, delay, and equity. These are now addressed individually. 12. As for the issue of speedy trial: a. His main argument is that more than 120 days elapsed between the time the court-martial charges were remanded to Fort Leavenworth and the date he submitted his chapter 10 request. According to this argument, he could not have validly submitted a request for discharge "in lieu of court-martial" because no court-martial charges existed at the time the request was submitted. Court-martial charges do not, however, self-terminate upon the passing of 120 calendar days. Instead, an accused who believes his charges should be dismissed for speedy trial reasons must affirmatively make that motion to the military judge. (Rule For Courts-Martial (R.C.M.) 707(c)(2)). Prior to referral, the same request for dismissal can be presented to the convening authority and, if denied by that authority, raised later to the military judge. (R.C.M. 707(c)(l),(2)). A speedy trial motion by the accused shifts the burden of persuasion to the government. (R.C.M. 905(c)(2)(B)). Having assumed the burden of persuasion in this regard, the government is permitted to submit a chronology of the case that would presumably include any excusable delays, including delays requested by defense counsel and approved by the convening authority. (R.C.M. 707(c)). Thus, whether court-martial charges should be dismissed due to speedy trial problems is a question that must affirmatively be raised by the accused, is a question subject to the normal motions practice before a military judge, and is a question that should be adjudicated only after the military judge has enough evidence to make an informed ruling. lf the government fails to carry its burden, the military judge should dismiss the charges. (R.C.M. 707(c)(l )). b. None of the things above happened in his case. More accurately, he and his counsel have proffered no evidence that his charges were dismissed for speedy trial reasons, or for any reason, prior to the date he submitted his chapter 10 request for discharge or prior to the date he was discharged. The Manual for Courts-Martial details many ways in which court-martial charges may properly be dismissed. (R.C.M 401 -407). None of them includes the elapsing of 120 calendar days as a sufficient reason, in itself, to deem the charges as having expired on their own accord. Likewise, the applicant has cited no authority that court-martial charges self-terminate on the 120th day after remand from a superior court. c. The applicant’s citation to United States v. McFarlin, 24 M.J. 631 (C.M.R. 1987) is noted. But, Mcfarlin merely holds that the speedy trial clock begins to run in a particular case when "the convening authority is notified of the final decision authorizing a rehearing." (McFarlin at 635). The applicant and counsel assert that the speedy trial clock started on 13 August 1987, the day the Army Court of Military Review notified the Commander, Combined Arms Center and Fort Leavenworth (the convening authority), that the applicant's case was remanded back to Fort Leavenworth for disposition at that level. However, other documents in the record indicate the applicant had not yet exhausted his appellate efforts by 13 August 1987. Indeed, on 26 August 1987, the applicant signed a Petition for Grant of Review in the U.S. Court of Military Appeals and on 1 September 1987, the Court of Military Appeals filed a Docketing Notice directing him to file his supplement to his petition by 30 September 1987. In light of this activity, the Deputy Clerk of Court notified the convening authority on 11 September 1987 that the applicant was further appealing his case at the Court of Military Appeals. The applicant, however, subsequently asked the Court of Military Appeals to withdraw his petition. d. On 9 October 1987, the Court of Military Appeals granted his request. A 28 October 1987 memorandum from the Deputy Clerk of Court notified the convening authority that the applicant had withdrawn his petition at the Court of Military Appeals. Thus, there appears to be ample evidence suggesting that the speedy trial clock started in late October as opposed to mid-August. Marking the start date 28 October 1987 would be consistent with the holding in Mcfarlin and with R.C.M. 707(c), which provides that "[a]ll periods of time during which appellate courts have issued stays in the proceedings . . . shall be excluded when determining whether the [speedy trial time limit] has run." One hundred­ twenty days after 28 October 1987 is 24 February 1988, or about one week after the applicant's 18 February 1988 discharge. e. Pinpointing the speedy clock trigger date is only one aspect of the overall speedy trial analysis. The more difficult task is ascertaining whether a speedy trial violation actually occurred. Nearly 30 years after the fact, the applicant and his counsel ask the ABCMR to determine whether a speedy trial violation occurred prior to his 20 January 1988 discharge request or to his 18 February 1988 discharge. The answer to this question is quite unknowable at this late date and is beyond the adjudicative powers of this Board. Speedy trial litigation at courts-martial are fact-intensive inquiries characterized by arguments about whether the government's purported periods of delay were justified, whether any period of delay should have been attributable to the defense, and whether such justifications for delay are proven to the satisfaction of the military judge. These are vexing questions for criminal courts even when they enjoy the comparative advantage of weighing contemporaneous evidence. Military courts have long wrestled with these questions and the 1980s were no exception (United States v. Harbour, CMR Lexis 2931, Navy-Marine Corps Court of Military Review (December 30, 1985); United States v. Lilly, 22 M.J. 620 (N.M.C.M.R. 1986); and United States v. McCallister, 24 M.J. 881 (Army Ct. of Military Review 1987)). Consequently, the applicant asks too much when he urges this Board to find that the 1987-1988 charges against him were a nullity despite the fact that: (1) the applicant and his defense counsel acknowledged the existence, and presumably the legitimacy, of both charges in the applicant's 20 January 1988 discharge request; (2) the applicant, in the same document, acknowledged guilt to at least one of the charges, or to a lesser included offense; and (3) no competent authority dismissed the charges until weeks after the applicant had already been discharged at his own request; and (3) It appears the applicant has failed to demonstrate by a preponderance of evidence that a re-hearing of the charges before a court-martial was legally barred due to speedy trial infirmities. f. The conclusion here is that the applicant has failed to demonstrate that an administrative discharge in lieu of court-martial was legally impermissible. With regard to whether these charges were referred to court-martial subsequent to remand, the record is silent on this issue. It is noted, however, that the question of whether the charges were referred to court-martial are likely not relevant to the issues the applicant has raised or to the relief he seeks. 13. As for the issue of insufficient legal advice: a. The version of AR 635-200 in effect at the time the applicant submitted his voluntary request for discharge for the good of the service required that commanders ensure a Soldier making the request was "not coerced into submitting a request for discharge for the good of the service," and that the Soldier be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to "consider the wisdom" of submitting such a request. Consulting counsel was to advise the Soldier concerning: (1) the elements of the offense of offenses charged (2) the burden of proof (3) possible defenses (4) possible punishments (5) provisions of this chapter (6) requirements of voluntariness (7) type of discharge normally given under the provisions of Chapter 10, AR 635- 200 (8) rights regarding the withdrawal of the Soldier's request (9) loss of Veterans Administration benefits (10) prejudice in civilian life because of the characterization of service (11) the fact that the request may be approved by a special court-martial convening authority if delegated to that authority but only a general court-martial convening authority may disapprove the request b. In his 20 January 1988 request for discharge for the good of the service, which he submitted after having availed himself of the services of JAG Corps Senior Defense Counsel Captain Ga-- Ha---, the applicant attested to the fact that he: * voluntarily requested a discharge for the good of the service under AR 635-200, Chapter 10 * understood that he was permitted to submit the request because he was charged with Article 108, UCMJ (Wrongful Disposition of Government Property), and Article 121, UCMJ (Larceny) which authorized the imposition of a bad conduct discharge * was making the request of his own free will and had not been subjected to "any coercion whatsoever by any person" * had been "advised of the implications that are attached to it" * acknowledged he "understood the elements of the offense charged" and was "guilty of the charge" against him or of lesser included offenses therein "which also authorized the imposition of a bad conduct or dishonorable discharge" * attested to the fact that he had been "afforded the opportunity to consult with appointed counsel for consultation who has "fully advised me of the nature of the rights under UCMJ, the elements of the offense with which I am charged" and any relevant lesser included offenses * was advised of the facts which must be established beyond a reasonable doubt to sustain a finding of guilty * was advised of the possible defenses which appear to be available at this time * was advised of the maximum permissible punishment if found guilty * understood he may be discharged under conditions other than honorable * had been advised and understood the possible effects of an under other than honorable conditions discharge and that, as a result of the issuance of such a discharge, he would be deprived of many Army benefits, and that he may be ineligible for many or all benefits administered by the VA * he understood he may be deprived of his rights and benefits as a veteran under both Federal and State laws * understood he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge * understood that there is no "automatic upgrading nor review by any Government agency of a less than honorable discharge” * knew he must apply to the ABCMR if he wished a review of his discharge * understood that once his discharge was submitted, it could only be withdrawn with the consent of the commander exercising court-martial authority, or without that commander's consent, in the event trial results in an acquittal or the sentence does not include a punitive discharge even though one could have been adjudged by the court * had been advised that he could submit any statements he desired in his own behalf, which would accompany his request for discharge c. To dispel any notion that the applicant had not thoroughly been counseled, his defense counsel signed an attestation beneath the document's final paragraph, which reads: "Having been advised by me of the basis for his contemplated trial by court­ martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the significance of the suspended sentence to a bad conduct or a dishonorable discharge, of the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and, of the procedures and rights available to him, SP4 [applicant] . . . personally made the choices indicated in the foregoing request for discharge for the good of the service." d. Comparing the specified requirements of AR 635-200, chapter 10, to the litany of acknowledgements memorialized by him and his defense counsel, it is clear that each and every requirement under the provisions of Chapter 10 of AR 635-200, was satisfied and fulfilled. It is equally clear that the applicant was provided advice, guidance, and counseling in excess of that which was required by the regulation in effect at the time. It is also noted that the applicant was 26 years old when he read and signed the Chapter 10 request and that he and his defense counsel had far more than 72 hours in which to discuss the case. In light of this evidence, it is reasonable to establish that the applicant has not demonstrated by a preponderance of evidence that he failed to receive the legal advice specifically required by chapter 10, AR 635-200. 14. As for the excludable delay attributable to "Attorney-Client Consultations": a. R.C.M. 707(c) provides that "[a]ll . . . pretrial delays approved by a military judge or a the convening authority shall be . . . excluded" when determining whether the speedy trial clock has run. The Discussion section of this rule cites examples of worthy reasons for a military judge or a convening authority to grant delays in a case. One of those reasons is "time requested by the defense." The record is silent as to whether applicant's defense counsel requested the convening authority approve as excludable delay the time necessary to consult with applicant about the advisability of submitting a chapter 10 request. This silence is not surprising since these events occurred in the 1980s and because documents memorializing whether defense delay was requested or approved would not be made a part of any record unless the case actually went to trial. b. This case never went to trial. Thus, whether his defense counsel sought and obtained approval for defense delay is another question that is likely rendered unsolvable by the passage of time. It is noted, however, that the Rules for Courts-Martial do not consider the time needed for attorney-client consultations to be excludable delays absent approval by appropriate authority. Consequently, it is reasonable not to deem as excludable delay the time that elapsed when the applicant and his defense counsel discussed the Chapter 10 request. This finding does not affect the earlier determination that the applicant failed to demonstrate by a preponderance of evidence that a re-hearing of the charges before a court-martial was legally barred due to speedy trial infirmities. 15. As for the issue of equity: a. The applicant has failed to demonstrate an error justifying correction. The remaining question is whether his case nevertheless warrants equitable relief to cure an injustice. His counsel strongly implies that his defense counsel between 1987 and 1988 rendered ineffective legal representation. This assertion is questionable. The applicant's military defense counsel was detailed to his case despite the fact that he was not the applicant's defense attorney during the applicant's trial by general court-martial or during the applicant's appeals at the various military appellate courts. He appears to have had very little time to master the multitude of facts in the case and to assess the strengths and weaknesses of the government's evidence. What he did know, however, is that the government's case was strong enough to convince a general court-martial that the applicant was guilty of stealing and bartering a machine gun. He also knew the case was persuasive enough to compel the court-martial to punish him with a two-year term of confinement at hard labor and a punitive discharge. Consequently, defense counsel's primary mission in the case was to avoid, if possible, a re-trial in which his client would again be placed in jeopardy of receiving a federal felony conviction. In this regard, defense counsel’s performance was commendable. His efforts resulted in the charges being dismissed and prevented the applicant from having to return from excess leave status to be re-prosecuted by the Army. b. It is also noted that there were significant constraints under which defense counsel was required to represent his client. The applicant was in Indiana while defense counsel was in Kansas. Means of communication were not easily available to facilitate fluid attorney-client communications. Furthermore, the government was probably signaling to him and his client that a Chapter 10 would be favorably considered, but only if it were submitted prior to the government expending time, money, and effort to remove the applicant from excess leave and transport him to Fort Leavenworth. These pressures could suggest that defense counsel may not have fully appreciated just how much the appellate court decisions had weakened the government's case. Likewise, it is an open question as to whether the Fort Leavenworth convening authority had much enthusiasm about prosecuting a case in which all of the alleged misconduct occurred at or near Fort Irwin, CA. In this regard, it may have been advisable to delay submitting a chapter 10 request until the government manifested more clearly its intent, or its disinclination, to again bring the case to trial. c. Nevertheless, the seriousness of his offense (stealing, selling/bartering a machine gun) cannot be underestimated. Although he spent a number of months in confinement at hard labor for convictions that later were overturned, he has still not demonstrated that his case warrants equitable consideration and his assertion that his discharge should be upgraded remains baseless. d. An honorable discharge is a separation with honor, when the quality of the Soldier'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 be inappropriate. The general characterization is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. e. In addition to the court-martial, the applicant's military record indicates that he engaged in misconduct twice that was punished under the provisions of Article 15, UCMJ. It appears his overall service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004923 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1