MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 May 1999             
	DOCKET NUMBER:    AR1998003497

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge be rescinded and he be reinstated to active duty in the rank of staff sergeant.

APPLICANT STATES:  He was innocent of the charges which were made against him and he only requested discharge in lieu of trial by court-martial because of ineffectual legal counsel and an adverse command climate at that time.  He has a wife and children and had to consider what the ramifications of his being sent to jail would have on them, especially in basic necessities such as food, clothing and shelter.  He chronicles the events leading to the charges being made, the reaction of his chain of command to him when the charges were made, the limited and faulty information provided to him by his legal counsel, and the hardships he and his family had to suffer as a result of his untimely discharge.  He also charges racial discrimination as white drill sergeants were more severely punished than black drill sergeants for the same alleged offenses.  He contends that the trainee who made the allegation that she had sex with him only did so to spite him because she had repeatedly flirted with him and he had scorned those advances.  The two trainees who submitted eye witness accounts were both troublemakers who were out to get him because he had reprimanded them for minor infractions.  Therefore, none of the three trainee’s statements have any credibility and should have been discounted.

COUNSEL CONTENDS:  That the evidence against the applicant was extremely weak and flawed.  He only requested discharge because of pressure from his chain of command and because of inept or inadequate advice from his military defense counsel.  Counsel also chronicles the events which transpired in the applicant’s case, presenting argument that is intended to discredit the trainee who allegedly had sex with the applicant and the two trainees who substantiated the allegations made by that trainee.  He presents argument that is intended to show that the applicant’s military counsel was derelict in his duties in that he did not properly advise the applicant of all of his options nor did he explore the possibility that he would win his case at a trial by court-martial; that the command climate at the time charges were made against the applicant made it impossible for him to receive a fair trial; and that the applicant was not in the proper frame of mind to make an informed decision as to whether to request discharge or to prove his innocence at a trial by court-martial, thereby risking confinement.  Counsel then details the applicant’s otherwise sterling military career, citing his numerous accomplishments and honors, and states that such a service record should, in of itself, warrant an upgrade of his discharge.  Counsel then requests that if the Board does not reinstate the applicant to active duty as requested, that the Board upgrade his discharge.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 5 June 1979, was awarded the military occupational specialty of light wheeled vehicle mechanic and was promoted to pay grade E-5.  He was honorably discharged under the early transition program on 30 April 1988.

He reenlisted as prior service on 28 September 1989 and was promoted to staff sergeant.  On 2 May 1994 he was assigned to Fort Jackson South Carolina as a drill sergeant.  On 15 September 1994 he was informed that he had been selected for promotion to sergeant first class.

On 6 December 1994 court-martial charges were preferred against the applicant.  Included were five specifications of violation of Article 92, UCMJ, in that he violated a general regulation in that he had sexual intercourse with a soldier in training (two specifications); in that he violated a general regulation in that he engaged in a private, personal, nonprofessional conversation alone with a soldier in training; in that he violated a general regulation in that he placed his hand upon the buttocks of a soldier in training; and in that he violated a general regulation in that he had dinner alone with a soldier in training.  Also included were two specifications of violation of Article 134, UCMJ, in that he, a married man, twice had sexual intercourse with a woman not his wife.  Those charges were based on sworn statements made by three soldiers in training.

On 12 December 1994 the applicant requested discharge in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10.  In that request he stated “I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person” and “By submitting this request for discharge, I acknowledge the elements of the offenses and am guilty of at least one of the charges against me or at least one of the lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.”  He also acknowledged in his request that he understood that he could be issued a discharge under other than honorable conditions.

The applicant’s chain of command recommended approval of his request but recommended that he be furnished a general discharge under honorable conditions.

On 15 December 1994 the convening authority accepted his request and directed that he be discharged under other than honorable conditions, and that he be reduced in grade to the lowest enlisted pay grade.  Accordingly, on 19 December 1994 the applicant was discharged under other than honorable conditions in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  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.

Army Regulation 600-200 provides for the automatic reduction in grade to the lowest enlisted pay grade when a soldier is discharged under other than honorable conditions.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The statements made by the three soldiers in training were more than adequate grounds to prefer court-martial charges against the applicant.

2.  The applicant’s contention that he received inadequate legal counsel is not accepted by the Board.  The applicant’s options were very limited at the time.  He could either request discharge or he could attempt to prove his innocence at a court-martial.  If he had opted to take the court-martial, he would have had to invalidate the statements of three individuals, not an easy task, and would risk confinement if he was unable to do so.  As stated by the applicant, he was extremely concerned about the possibility of his confinement since he would not be able to financially support his family if that occurred.  Likewise, he has not shown that the command climate would have precluded his receiving a fair trial.

3.  The applicant’s claim that he was innocent, that all three soldier trainees submitted the statements against him in retaliation, is a matter that would have been better considered by a court-martial.  However, the statements from the respective soldiers in training appear valid.  They do not appear couched as they do not say the same thing, yet all three statements individually validate the two other statements.

4.  The applicant’s contention that his punishment was harsher than that received by black soldiers is also not accepted by the Board.  The applicant has not shown that any black soldier who had been charged with exactly the same offenses and which had those charges substantiated with three sworn statements received less punishment then him.

5.  The applicant’s excellent military record has been carefully considered by the Board as grounds to upgrade his discharge.  While his service record is commendable, it does not outweigh the severity of his admitted abuse of authority with a trainee under his direct control.

6.  The hardships experienced by the applicant and his family is regrettable.  However, a soldier who is discharged may no longer live in Government quarters or receive medical care for his dependents at Army expense.  In view of the applicant’s admitted guilt to a court-martial offense for which he could have received a bad conduct or dishonorable discharge, his discharge was proper, his characterization of service was proper, and his resultant removal from base housing was proper.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

_	___  _     ____  _      ____  GRANT

________  ________  ________  GRANT FORMAL HEARING

_jns_____  __rgh____  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998003497	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990519	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.