MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 May 1999                  
	DOCKET NUMBER:   AC98-11033
				   AR1998014521

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. John Saputo		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 erroneous discharge be revoked, his reduction in grade from sergeant first class (SFC) (E-7) to private (E-1) be reversed, and that he be returned to active duty in pay grade E-7.

APPLICANT STATES:  That at the time of his discharge, he was bewildered, confused, unaware of his surroundings and, therefore, unable to contribute to his own defense.  He states that because of his mindset at the time, he would have signed any document placed in front of him, but that he would not have knowingly signed an admission of guilt for a crime he did not commit. 

COUNSEL CONTENDS:  That the applicant did not engage in the sexual conduct leading to the charge of adultery, and the applicant submitted exculpatory statements during the preliminary hearing, which established his and the other individual’s whereabouts at the time the alleged adultery occurred.  

Counsel further contends that a request for discharge per chapter 10, Army Regulation 635-200 does not apply, unless the case has been referred to a court-martial authorized to adjudge a punitive discharge and that paragraph 1-21 of the regulation states that this authority should not be used when the facts do not establish a serious offense, even though the punishment under the UCMJ may include a punitive discharge.  Counsel contends that the facts show the alleged serious offense never occurred. 

With respect to the applicant’s previous court-martial, counsel questions the validity of the conviction, stating that the applicant was not afforded due process, particularly since he was not allowed to present character witnesses or character statements at the court-martial.  The statements submitted against him by three female cooks which resulted in the court-martial charges were too similar and duplicative in nature.  A reasonable mind could not reach the conclusion that the applicant should have been convicted by a summary court-martial based upon these statements. 

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

The applicant was discharged from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial for adultery on 11 February 1992.  His service was characterized as under other than honorable conditions.  He had served in the Food Service specialty and had completed 13 years, 6 months, and 18 days of total active service prior to discharge.  His awards included the Army Commendation Medal (7th oak leaf cluster), the Army Achievement Medal (6th oak leaf cluster), and the Army Good Conduct Medal (4th award). His highest rank attained was sergeant first class (E-7).  

Following discharge, the applicant submitted a request for an upgrade of his discharge to the Army Discharge Review Board (ADRB).  His contentions to the ADRB were essentially the same as he makes to this Board.  The ADRB rejected his contentions but did determine that his discharge was inequitable because the quality of his service did not warrant the granting of a discharge under other than honorable conditions.  The ADRB concluded that the applicant’s failure to perform in accordance with Army standards was mitigated by service of sufficient merit to warrant upgrade of the discharge.  The ADRB granted relief in the form of an upgrade of his discharge to general, under honorable conditions.  It also directed restoration of his rank to sergeant first class (E-7) and a correction of his reentry code from RE-4 to RE-3, which is a waivable code.  

The Court-martial charge sheet is not available in the file.  However, the records show that after consulting with counsel the applicant voluntarily submitted a request (undated) to be discharged for the good of the service in lieu of trial by court-martial.  He acknowledged in his request for discharge that by submitting his request, he was admitting his guilt of the charge against him or of a lesser included offense, which also authorized the imposition of a punitive discharge. 

With respect to his prior court-martial conviction, the records show the applicant was assigned to Germany on 5 July 1988.  While there, his unit was deployed to Saudi Arabia in support of Operation Desert Shield/ Desert Storm on 27 December 1990.  His duty position was NCOIC, Headquarters 3rd Armored Division Dining Facility. 

On 21 April 1991 the applicant’s commander informed him that he intended to initiate action to relieve him as NCOIC of the dining facility, as a result of a completed Army Regulation 15-6 investigation in which it was alleged he had committed both verbal and physical acts of sexual harassment against subordinates working in the dining facility.  The applicant rebutted the relief.  On 19 April 1991 his commander suspended him from all duties involving the dining facility.  

On 28 April 1991 he was tried and convicted by a summary court-martial of using indecent language, unlawful touching, and indecent assault.  The sentence is not indicated in the file.  However, the file does indicate he requested suspension of the sentence.

The Calendar Year 1991 Master Sergeant Promotion Board, after a comprehensive review of the applicant’s Official Military Personnel File determined that he should be barred from reenlistment under the Qualitative Management Program (QMP).  He was notified on 22 November 1991 that he was barred, that he had the right to appeal, and that he would be separated from the Army if his appeal was not approved.  The applicant elected to appeal the bar but no evidence exists in the file that the appeal was submitted.
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 court-martial charges have been preferred.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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

1.  The applicant’s voluntary request for discharge for the good of the service to avoid trial by court-martial for adultery after consulting with legal counsel was administratively correct and in conformance with applicable regulations.

2.  The applicant has submitted no evidence to show he was coerced into requesting discharge or that he was not in his right mind when he did so.  Rather, it appears he chose to request an administrative discharge rather than risk the consequences of a court-martial.  

3.  His contention that he was told by his attorney that the Army was planning to use evidence from his previous court-martial against him has been noted.  Ultimately, however, the decision to request discharge in lieu of trial was his.   Although he may now feel that he made the wrong decision, this is not a basis for revoking his discharge or returning him to active duty.    

4.  The ADRB has upgraded the applicant’s discharge to general, under honorable conditions and has directed restoration of his rank and a change in his RE code.  This Board, having considered essentially the same evidence and contentions concludes that no further relief is warranted.  His misconduct diminished the quality of his service such that a fully honorable discharge is not merited.   

5.  The Board notes counsel’s contentions relating to the provisions of chapter 10, Army Regulation 635-200, the authority for the applicant’s discharge.  Under this authority, as cited above, a soldier may request discharge for the good of the service when facing charges for which the authorized punishment includes a punitive discharge at any time after court-martial charges have been preferred.  This would include before the charges are referred to a court-marital.  

6.  Counsel also contends that a serious offense had not been established.  However, adultery is a serious offense.  If, in fact, the applicant was innocent, he could have elected to go to trial to prove his innocence.  By submitting his request for discharge in lieu of trial by court-martial, he admitted his guilt of the charge.  

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

____X___  ____X___  ____X___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9811033/AR1998014521	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990505	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.