2.  The applicant requests reinstatement to active duty at the rank he held at the time of his separation, back pay and allowances, and removal of all military service record entries indicating he was discharged for misconduct.  He states the discharge is unjust because it was based upon unreliable evidence and all attempts to obtain a hearing or otherwise be able to defend himself were denied. He passed two urinalysis tests, on 17 November 1995 and 10 April 1996.  He includes several statements, including one from his platoon leader, attesting to his good conduct, bearing and duty performance.

3.  The applicant’s military records show he enlisted in the Regular Army on       24 June 1993 for 5 years.  He completed basic training and advanced individual training and was awarded MOS 95B (Military Police).  He was promoted to Specialist Four, E-4 on 1 October 1995.  He had no record of disciplinary problems prior to the incident leading to his discharge.  He had earned the Army Achievement Medal (1st Oak Leaf Cluster) and also several certificates of appreciation and achievement.  

4.  A Criminal Investigation Command (CID) investigation established probable cause and evidence to believe the applicant, along with several others, committed the offenses of wrongful possession, use and distribution of marijuana when they consumed an undetermined amount of marijuana by passing it amongst each other.  The dates of the offenses were   31 March - 19 May 1996 at various locations and 19 - 10 April 1996 in Maastricht, Netherlands.  Three of the individuals provided statements to the CID which implicated the applicant.  Two individuals, including the applicant, invoked their legal rights and requested counsel.  Two others were not interviewed because they had counsel.

5.  On 31 July 1996, the applicant’s First Sergeant ordered him not to have any contact with the primary accuser while action was still pending in his case.

6.  On or about 1 August 1996, the applicant and one other individual helped the primary accuser into the barracks after physical training.  She (the accuser) and the applicant were alone for one or two minutes.  Later the applicant approached the other individual and “insinuated that if anyone asks about the day in question that I should tell them I was there the whole time that we transported (her) together.”

7.  On 16 August 1996, the applicant attended a social function at a local restaurant.  The accuser appeared, uninvited.  One witness stated she talked to the applicant; he paid no attention; she insisted on talking; he said that was not the time or the place.  Another witness stated she talked to him; he responded; then they both went into another room to discuss something.  Another witness stated he overheard her say she had falsely accused the applicant, but made no mention of the applicant’s response.  Another witness stated she and he “began talking about some statements that her and her friend wrote against” him.  He “then asked her why they were written.”  Further conversation in a similar vein was overheard.

7.  On 30 October 1996, the applicant underwent a mental status evaluation and was found to be mentally capable of understanding and participating in board proceedings and mentally responsible.

8.  On 1 November 1996, discharge proceedings under Chapter 14, Army Regulation 635-200, for misconduct, were initiated.

9.  The applicant provided rebuttal comments.  He stated that he had been offered non-judicial punishment, but he was innocent so he turned it down and demanded trial by court-martial.  There was evidence in the packet indicating that false statements were made.  In reference to his disobeying the order to have no contact with the accuser, he stated he was often tasked with work details which had him working with her.  The only inappropriate contact was at a local restaurant.  She persisted in talking to him.  He realized he showed poor judgment in talking with her; however, that conduct by itself is insufficient evidence to form the basis of chapter action.

10.  The applicant requested consideration of his case by a board of officers, but as he had less than 6 years active federal service he was not entitled to this right.

11.  On 9 December 1996, the appropriate authority approved the recommendation and directed the applicant be given a general discharge.

12.  On 18 December 1996, the applicant was discharged, with a general under honorable conditions discharge, in pay grade E-4, under the provisions of Army Regulation 635-200, Chapter 14 for misconduct .  He had completed 3 years,     5 months and 25 days of creditable active service and had no lost time.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate.

14.  The separation authority may direct a general discharge if such is merited by the soldier’s overall record.  When a soldier has completed entry level status,  characterization of service as honorable is not authorized unless the soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate.

CONCLUSIONS

1.  The applicant admits to disobeying an order to have no contact with his accuser while his case was pending.  While some consideration is given to the fact he apparently was detailed to work with her, he gives no evidence that he told the person so detailing him that he was to have no contact with her.  As to the incident at the restaurant, while it may have been inconvenient for him, he could have just walked away.  The applicant was a soldier with law enforcement training and several years of law enforcement experience; he should have known that talking to his accuser could have led to a possible obstruction of justice or the perception of such.  This alone was serious enough to warrant his separation for misconduct.

2.  However, this Board also notes that the applicant had a very good record prior to the charges that led to his discharge and apparently continued to work well during the time his case was pending disposition.  It notes that the primary accuser was overheard “confessing” she had falsely accused the applicant of these charges.  It also notes that while one of these charges was the wrongful use of marijuana over an extended period of time, the commander makes no mention of his ever failing a urinalysis test.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by showing:

    a.   that the individual concerned was given an honorable discharge from the Army on 18 December 1996, under the provisions of Chapter 14, Army Regulation 635-200, for misconduct;

     b.  that the individual concerned be issued an Honorable Discharge Certificate from the Army of the United States, dated 18 December 1996, denoting an honorable discharge in lieu of the general discharge now held by him; and

     c.  that the individual concerned be issued a new DD Form 214 reflecting the aforementioned corrections.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION 

                       GRANT FORMAL HEARING

                       DENY APPLICATION

				                                                                         		
						CHAIRPERSON