MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  25 January 2001
	DOCKET NUMBER:  AR2000039107

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karen A. Heinz		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: Through his legal counsel, that his records be corrected to show that he was honorably discharged and eligible to return to the Tennessee Army National Guard (TNARNG).

APPLICANT STATES: The applicant defers to his legal counsel.

COUNSEL CONTENDS: Counsel submits a comprehensive statement outlining, among other things, a flirtation with a PX (Post Exchange) female employee, which lasted over a full year (prior to the applicant’s entry on active duty).  He admits the applicant returned the victim’s displays of affection by touching her breasts and touching and pulling her towards him.  He refers to the victim as neurotic.  He indicates the applicant took and passed a polygraph test and submitted to a psychological assessment, which led to an indication of normal sexuality.  The applicant requested resignation because he realized the effects of an unfair conviction.

Counsel insists the applicant warrants an honorable discharge.  He was a valued member of the TNARNG.  He was selected for promotion to major.  He was selected for a three-year active duty tour, which he missed because of his discharge.  He was hand picked for assignment to a counter-drug team.  He was recommended for award of the Army Commendation Medal, but was denied because his records were flagged.  

He indicates the exchange manager overreacted and did not act on her training, by informing officials at Fort Campbell, Kentucky of the applicant’s actions.  The Judge Advocate General did not act on his training and notified the TNARNG Chief of Staff, instead of the applicant’s immediate commander.  The TNARNG Chief of Staff disregarded the proper chain of command and contacted the Fort Campbell Criminal Investigation Division, to initiate an investigation of the allegations.  He contends the TNARNG abandoned the applicant to Fort Campbell’s active duty system, where no one knew or cared about him or his excellent record.

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

On 22 May 1995, the applicant entered into the Title 10 Active Duty Special Work (ADSW) project, in the rank of captain, as a member of the TNARNG, for the period 22 May through 29 September 1995.  He was on temporary duty to Headquarters, State Readiness Center, Nashville, TN; attached to the Army National Guard Readiness Center, Arlington, Virginia; and, that he was subject to the Uniform Code of Military Justice (UCMJ) Jurisdiction (Fort Campbell, Kentucky).

On 7 September 1995, in a sworn statement, the applicant admitted to grabbing a female’s breasts on numerous occasions, grabbing her hips and pulling her against him on numerous occasions and fondling her “genitle” (sic) (reproductive organ) area without her consent.

On 28 November 1995, the applicant’s commander preferred court-martial charges against the applicant for:

1.  Committing an indecent assault upon a female, not his wife, by wrongfully grabbing her breasts, without her consent, with intent to gratify his lust on or about 1 June 1995.

2.  Committing an indecent assault upon a female, not his wife, by wrongfully grabbing her hips and pulling her toward him and rubbing the front of his body against her, without her consent, with intent to gratify his lust on or about 25 August 1995.

3.  Committing an indecent assault upon a female, not his wife, by wrongfully grabbing her crotch, with his hand, and wiggling his fingers, without her consent, with intent to gratify his lust on or about 25 August 1995.

4.  Wrongfully and unlawfully engaging in conduct unbecoming an officer and a gentleman with a female, not his wife, by wrongfully grabbing her breasts, grabbing her crotch with his hand, and by rubbing his groin against the front of her body, with intent to gratify his lust, and in a public place, while in uniform, to the disgrace of the armed forces.

The maximum punishment for charges number 1 through 3 under Article 134, Uniform Code of Military Justice (UCMJ) are dishonorable or bad conduct discharge; 5 years confinement and total forfeiture.  The punishment for the final charge (number 4) under Article 133 (UCMJ) is dismissal; 1 year (or as prescribed) confinement; and total forfeiture.

On 6 February 1996, an Article 32, UCMJ Investigation, consisting of 236 pages, concluded the applicant had committed the offenses for which he was charged.

On 5 March 1996, the applicant voluntarily tendered his resignation for the good of the service.

On 10 May 1996, the Commander, Total Army Personnel Command Message 101609ZMAY96, subject: resignation for the good of the service, approved his request and directed an Under Other Than Honorable Conditions (UOTHC) Discharge.

On 18 June 1996, he was discharged from the ARNG under Army Regulation 600-8-24, paragraph 3-13, in lieu of trial by court-martial and released from active duty.  His character of service was determined to be UOTHC (Undesirable).  His separation document indicates he had completed 1 year and 27 days of creditable service.

On 12 July 1996, the TNARNG discharged the applicant and transferred him to the US Army Reserve Control Group (Reinforcement), St. Louis, Missouri, effective 18 June 1996.

On 15 April 1998, the Army Discharge Review Board reviewed his request and concluded that his discharge was proper; however, the characterization of service was considered inequitable and was changed to a General Discharge, Under Honorable Conditions.

Army Regulation 600-8-24 (Officer Transfers and Discharges) indicates, in pertinent part, that an officer may submit a resignation for the good of the service (RFGOS) in lieu of general court-martial (GCM) when court-martial charges have been preferred against the officer or the officer is under a suspended sentence of dismissal.  The convening authority will not take action on the findings and sentence until the Secretary of the Army or delegee has acted on the RFGOS.  The commander will ensure that a RFGOS is voluntary and that an individual is provided the opportunity to consult with legally qualified counsel and allowed a reasonable period of time to consider requesting a RFGOS.  An officer normally receives characterization of service of Under Other Than Honorable Conditions.

Army Regulation 600-8-24 (Officer Transfers and Discharges), indicate that an honorable discharge is a separation with honor for an officer.  The honorable characterization is appropriate when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer, or is otherwise so meritorious that any other characterization would be inappropriate.

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 chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

2.  The applicant’s voluntary request for separation under Army Regulation 600-8-24, paragraph 3-13, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress. Under these circumstances, the applicant is not entitled to reinstatement.

3.  The Board notes the applicant and his counsel both admit guilt on the part of the applicant, and they have not satisfied the Board that he is entitled to an honorable discharge, or to reinstatement.  Under the circumstances, the applicant is not desirable for reinstatement in the service.  His misconduct renders him unacceptable for further service.

4.  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 this requirement

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

___jh__  ___kh_____  __le____ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039107	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010125	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	UP GD	
2.		
3.		
4.		
5.		
6.