MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 August 2000
	DOCKET NUMBER:   AR2000040105

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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:  In effect, that his discharge under other than honorable conditions be upgraded to honorable and that he be allowed to again enlist in the Army when he is released from incarceration.

APPLICANT STATES:  In effect, that he accepted the discharge under the provisions of chapter 10 on the ill advice of counsel but now believes that he should not have done so, because after being court-martialed and while in confinement at Fort Leavenworth, a rehearing of his case was directed.  However, his counsel refused to hear his request to go back for the rehearing and ordered him to accept the discharge under chapter 10, to get out of the service, and not to make any waves.  He contends that he was ill advised by his defense counsel to begin with and was unjustly ordered to submit a request for discharge instead of trying to win at a rehearing of his trial by court-martial, a case that he believes that he could have won had he went before a rehearing instead of accepting the bad discharge he got.  He also states that he desires a good discharge so that when he is released from his incarceration he will be able to reenlist.  He further states that his excellent conduct and performance as a soldier as well as his accomplishments while in incarceration should be considered in his case.

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

The applicant enlisted on 26 June 1975 for a period of 2 years, training as a field artillery crewman, and assignment to Europe.  He successfully completed his training and was transferred to Germany on 6 November 1975.  He was promoted to the pay grade of E-4 on 26 September 1976.

On 27 September 1976, the applicant, in connection with an investigation being conducted by the criminal investigation division (CID), made a sworn statement to CID officials admitting that while acting in his capacity as the Cub Scout Troop Leader, he engaged in homosexual acts with three boys ranging in ages from 10 to 7.

On 27 October 1976 charges were preferred against the applicant for two specifications of committing sodomy with a child under 16 years of age and three specifications of committing lewd and lascivious acts upon the bodies of three children under the age of 16.  He was referred to trial by a general court-martial.

The applicant, with the assistance of his military defense counsel, entered into a pre-trial agreement in which the applicant agreed to plead guilty to the charges and specifications against him in return for a pre-trial agreement that the convening authority would approve no sentence in excess of a dishonorable discharge, confinement at hard labor for 7 years, total forfeitures, and reduction to the pay grade of E-1.  The convening authority accepted the terms of the agreement on 3 February 1977.
The applicant was tried by general court-martial on 11 February 1977 and elected trial by judge only.  He plead guilty to the charges and specifications against him only after the judge went to extensive lengths to explain his rights and to persuade him to do otherwise.  He also explained to the applicant that it was his right and obligation to plead not guilty and that the maximum punishment for the offenses for which he was charged was a dishonorable discharge, 61 years of confinement at hard labor, total forfeitures, and a reduction to the pay grade of E-1.  The applicant was adamant that he was guilty and elected to allow his plea to stand.

The judge accepted his plea of guilty and sentenced him to be discharged with a bad conduct discharge, to be confined at hard labor for 7 years, to forfeit all pay and allowances, and to be reduced to the pay grade of E-1.

On 31 March 1977 the convening authority approved only so much of the findings and sentence as provided for a bad conduct discharge, 4 years of confinement at hard labor, forfeiture of all pay and allowances, and reduction to the pay grade of E-1.

The applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas pending the appellate review of his case.  On 29 August 1977 the Court of Military Review affirmed the findings and sentence as approved by the convening authority. 

Although not fully explained in the available records, it appears that the applicant appealed his sentence to the Court of Military Appeals because there is a letter contained in his records which indicates that the Court of Military Appeals set aside the findings and sentence of the applicant’s court-martial and authorized a new hearing (court-martial).  It also appears that hearing was authorized because the Court of Military Appeals determined that a procedural error occurred when the judge failed to make sufficient inquiry as to whether the applicant fully understood the conditions of his pre-trial agreement.

On 17 March 1978, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He also indicated that he was making the request of his own free will, that he had not been subjected to any coercion by anyone, that he had been advised of the implications attached to his request, that he was guilty of the charges against him, that he did not desire rehabilitation, and that he had no desire to perform any further service.  He further indicated that he was aware of his rights and understood the possible effects of a discharge under other than honorable conditions. 

The convening authority approved his request on 4 April 1978 and directed that he be discharged under other than honorable conditions.  As a result of the applicant’s administrative discharge and the fact that a new hearing had been authorized by the Court of Military Appeals, orders were published on 11 April 1978 which set aside the court-martial convictions and dismissed all charges against the applicant.

Accordingly, he was discharged under other than honorable conditions on 27 April 1978 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 10 months, and 2 days of total active service.

On 27 June 1979 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he had been         court-martialed for a crime that he did not commit and that his trial was insufficient and prolonged and that given his otherwise excellent military and civilian record of performance, he should have received an honorable discharge.  He was granted a personal appearance before the ADRB and with the assistance of counsel asserted that he had been coerced into admitting to committing lewd and lascivious acts with little boys and after an hour of interrogation he finally gave in and signed the statement prepared by the CID officials.  After reviewing the testimony and evidence of record, the ADRB determined that the applicant had been properly and equitably separated from the service and voted unanimously to deny his request.  

In October 1996, while incarcerated in a prison in Tucson, Arizona, the applicant sent a request to the National Personnel Records Center in St. Louis, Missouri requesting copies of documents from his records to assist him in requesting an upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  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 separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid re-trial by  court-martial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions regarding the charges against him and the circumstances surrounding his request for discharge have been noted by the Board and appear to be without merit.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the offenses for which he was charged and the fact that he was granted a re-trial based on a procedural error that had nothing to do with his guilt or innocence and could have easily resulted in a greater sentence than he originally received.

4.  Therefore, it appears that the applicant elected to take the option of requesting an administrative discharge rather than risking the possibility of a greater sentence at a re-trial.  In doing so he again admitted guilt to the charges against him and there is no evidence of any coercion by anyone regarding his request.

5.  The applicant’s contention that he desires an upgrade of his discharge so that he may reenter the service after his release from incarceration has been noted by the Board.  Although such is not the basis for upgrading a discharge, the Board notes that the applicant would not be eligible for enlistment based on his incarceration alone.

6.  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

__mdm__  __js_____  ___kah__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040105	
SUFFIX		
RECON		
DATE BOARDED	2000/08/10	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/04/27	
DISCHARGE AUTHORITY	AR635-200, CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.