MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 June 1999                   
	DOCKET NUMBER:   AR1999020543

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		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 general discharge be upgraded to honorable without conditions, that his reenlistment (RE) code be changed to RE-1, and that he receive back pay and all compensation due him for his false incarceration.  He submits copies of translated German court documents, medical records, and visit reports during his confinement in support of his application.

APPLICANT STATES:  That the Army found insufficient evidence to court-martial him but he was allowed to be tried twice in a German court and finally found guilty. This was clearly double jeopardy that is not allowed in US courts.  He was not allowed to present evidence or witnesses at his discharge hearing and an incorrect section of the regulation was used to discharge him.

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

He enlisted for 4 years and entered active duty on 13 July 1976.  After completion of training as a clerk he was assigned to Germany.  In July and August 1977 he was punished under Article 15, UCMJ for three specifications of disobeying a lawful order.  In September 1977 he received a rehabilitative transfer to another unit.  In December 1978 a bar to reenlistment for the applicant was approved based on his record on non-judicial punishment, disrespect for authority, threatening of fellow soldiers, and unsatisfactory conduct and efficiency ratings.

The applicant was promoted to E-4 effective 14 July 1978.  On 29 December 1978 he was convicted by special court-martial of disrespectful language to his superior noncommissioned officer.

On 26 and 27 April 1979 the applicant and two other soldiers were tried in a German court on a charge of rape of a German national.  There is no record on when the charges were filed.  This trial resulted in an acquittal of all three soldiers.  In accordance with German law serious offenses may be retried in a higher court upon successful appeal by the defense or prosecution.  The prosecution conducted a successful appeal of the acquittal and the case was scheduled for retrial in a German regional court consisting of three professional judges and two lay judges.

On 11 October 1979 he was again punished under Article 15, UCMJ for three specifications of failure to obey a lawful order of a commissioned officer.  On 13 May 1980 he was convicted by summary court-martial of failure to go to his place of duty, disrespect to an officer, disobeying a lawful order of an officer, displaying contempt to a noncommissioned officer, and communicating a threat to a fellow soldier.  He was reduced to grade E-2.

Both trials were attended by an Army lawyer acting as observer/recorder.  At the second trial on 21 and 22 May 1980 the applicant and the other two soldiers were found guilty of the charge of rape and sentenced to 3 years in prison.  All three soldiers declined to testify in their own defense and the trial observer report stated that, under all the facts and circumstances, the accused received a fair trial.  He also stated that they were not denied any of the procedural safeguards secured by the NATO Status of Forces Agreement, other applicable international agreements, or German law.  The applicant was confined by civil authorities from 22 May 1980 to 30 November 1981.

On 10 April 1981 the unit commander notified the applicant of his intent to recommend him for separation for misconduct due to his conviction by a civil court. After consulting with counsel he requested appearance before a board of officers and representation by counsel.

After being granted several delays in the hearing the board convened on 30 September 1981.  Although the defense submitted that the applicant had first been acquitted of the rape charge before conviction by a second court the board ruled that discharge proceedings for misconduct should still proceed and the required legal review would determine the legal sufficiency of the second trial.

After review of all the evidence submitted and testimony of witnesses the board found that the applicant was not desirable for further service due to his unfavorable military and civilian record and recommended he be separated with a general discharge.

The separation authority approved the recommendation of the board of officers and directed issuance of a general discharge.  Effective 3 December 1981 the applicant was separated under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He had 3 years, ten months, and 12 days creditable service and 558 days lost time.

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.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-4 applies to persons with a nonwaivable disqualification.  Certain persons with bars to reenlistment are so disqualified as are those discharged under the provisions of AR 635-200, chapters 10, 14, and 15.

The DOD Financial Management Regulation, Volume 7A, states that a member delivered to civil authorities to serve a period of confinement forfeits all pay and allowances during the period of absence when the confinement is a result of trial and conviction.

An advisory opinion (COPY ATTACHED) from the legal advisor of this agency was provided to this Board and the applicant.  No response was received from him by the established suspense date.  The opinion notes that the regulation provides for processing an individual for separation based on conviction by a foreign tribunal.  That conviction properly formed the basis for the separation action since the German courts do not have a double jeopardy statute.

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board has noted the contentions of the applicant.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.

3.    The applicant was separated and assigned a reentry code in accordance with regulations then in effect.  There appears to be no basis for removal or waiver of that disqualification which established the basis for the RE code.

4.  The forfeiture of the applicant’s pay and allowances during his period of confinement was in accordance with law and regulation.

5.  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

__MKP___  __GFG___  _LE____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020543	
SUFFIX		
RECON		
DATE BOARDED	19990623	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19811203	
DISCHARGE AUTHORITY	AR 635-200, CHAP 14	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.	128.15	
3.	100.03	
4.		
5.		
6.