MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:            7 September 2000                  
	DOCKET NUMBER:   AR2000045772

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adoplhi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern III		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 under other than honorable conditions discharge be upgraded to a general discharge, that he be restored to pay grade E-4 which he held prior to his separation, that his records be corrected to reflect award of an Army Commendation Medal in 1994, and that a Report of Survey be expunged from his file and “any leans or garnishes of wages or taxes be lifted.”  He also asks that “all VA benefits be reinstated or compensated for, that were lost.”

APPLICANT STATES:  In effect, that the Army was negligent by not informing him of his right to have a military legal counsel at the time of his civilian court proceedings, and that he was never informed of the “outcome” of his administrative separation board proceedings and the “Army did not properly inventory his household goods or issued equipment.”  He states, in effect, that he was punished twice for the same crime when he was convicted by a civil court and subsequently discharged under other than honorable conditions and reduced to the grade of E-1.  He also contends that his discharge was fraudulent because he was reattached to his original unit in Germany after being incarcerated and that information concerning his leave status was incorrect on the Report of Survey.  He submits no evidence in support of his request except for his self-authored statement.

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

He entered active duty on 1 December 1992 after having served in the Army National Guard for more than a year.  He was initially assigned to Fort Benning, Georgia and in December 1994 was reassigned to Germany as a track vehicle repairer with the 77th Maintenance Company.

In November 1993, while still assigned to Fort Benning, Georgia, the applicant was recommended for award of an Army Commendation Medal.  The recommendation was, however, downgraded to an Army Achievement Medal which was confirmed in orders published on 10 January 1994 at Fort Benning.

On 21 March 1995 the Montgomery County Georgia Grand Jury charged the applicant with two counts of child molestation (the victim was the applicant’s younger sister and the violations occurred between June 1989 and March 1994). The applicant’s command in Germany was notified of the charges on 4 April 1995 and on 5 April 1995 the applicant departed on 10 days of advanced leave.  On 8 May 1995 he was convicted by the Superior Court of Montgomery Country, Georgia of child molestation and sentenced to 5 years confinement.  During the applicant’s civilian trial he was temporarily attached to Fort Benning, Georgia.  The attachment expired on 25 July 1995.

On 7 September 1995, the applicant’s unit commander (77th Maintenance Company) notified the applicant of initiation of separation action under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct-conviction in civil court, with a recommendation for an under other than honorable conditions discharge.  He was advised of his rights via correspondence, which was delivered to the applicant by certified mail.  The applicant acknowledged notification, consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service of no less favorable than a general discharge and submitted a statement on his own behalf.  The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 29 July 1996, a board of officers convened and recommended separation for misconduct-conviction by civil court with a characterization of under other than honorable conditions.  The applicant was represented at the administrative separation hearing by counsel.  On 12 September 1996, the separation authority approved the findings and recommendation of the separation board and on 
13 November 1996 the applicant was discharged in pay grade E-1.  Documents authored by the applicant, which are contained in his Official Military Personnel File, indicate he did not receive a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) until he requested a copy in 1999.  His OMPF, however, does not contain an original DD Form 214, only copies.

On 22 November 1996 a member of the applicant’s former unit (77th Maintenance Company) inventoried the applicant’s unit level issued equipment.  The inventory official indicated that he was unable to locate several items and in December 1996 a Report of Survey concluded the applicant was liable in the amount of $448.35 for the missing equipment.  The inventory documents noted, incorrectly, that the applicant departed on leave in “October 1995” and was subsequently convicted by a civil court.  The applicant apparently received copies of the Report of Survey as he included them as enclosures to correspondence to various officials from whom he sought help in upgrading his discharge, restoration of his grade, etc.  There is no indication the applicant was ever required to pay, or paid, the $448.35 or that he attempted to have any indebtedness waived via appropriate administrative channels.

Army Regulation 27-3 states that legal assistance may be provided on civilian criminal matters based on the availability of expertise and resources.  Clients seeking assistance on civilian criminal matters may be provided general advice on civilian criminal matters, such as explaining the nature of the criminal charge, possible punishments, and criminal procedure.  Attorneys providing legal assistance may contact civilian court or prosecuting officials to obtain information, and to request delays in proceedings, dismissal or reduction of charges, and other such matters.  However, except for cases pending before a U.S. Magistrate on a military installation, attorneys providing legal assistance may not provide in-court representation to clients in civilian criminal proceedings.
Army Regulation 635-200 states that a soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, when the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.  A soldier confined by civil authorities will receive notice delivered personally or sent by certified mail.  When entitled to an administrative board, the soldier will be notified that the hearing by a board of officers will proceed in his or her absence and that counsel will represent him or her.  The completed report of proceedings will be forwarded to the separation authority.  Upon determination that a soldier is to be separated with a discharge under other than honorable conditions, the separation authority will direct reduction to the lowest enlisted grade.

Army Regulation 635-5 states that when separation is accomplished under circumstance which preclude physical delivery of the separation document, the document will be mailed to the address shown in item 19 of the DD Form 214.  In the applicant’s case his father’s address was recorded in item 19.

Black’s Law Dictionary describes “double jeopardy” as protection against second prosecution for same offense after acquittal or conviction and against multiple punishments for the same offense.

In July 2000 the Army Discharge Review Board denied the applicant’s petition to upgrade his discharge.

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.  Although the applicant was recommended for an Army Commendation Medal that recommendation was downgraded to an Army Achievement Medal.

2.  Army Regulation 27-3 precludes the representation of military personnel by military attorneys during criminal court proceedings.

3.  The applicant would have been “informed” of the administrative board’s findings when he received his DD Form 214.  The DD Form 214 would have been forwarded to the applicant at his father’s address.  While he contends that he did not receive the separation document until 1999 the Board concludes that non-receipt of the DD Form 214 did not in anyway jeopardize the applicant’s rights and as such creates no error or injustice.

4.  While the applicant’s parent unit may have been remiss in waiting so long to inventory the applicant’s unit level equipment the fact that they recorded his “leave” date as October 1995 vice April 1995 did not impact on the outcome of the report of survey.  The applicant received a copy of the findings of the Report of Survey and has not shown that he was ever required to make restitution or that if he in fact paid for the lost items or that he took action to request relief from any indebtedness through administrative channel available to him.  As such there is no basis on which the Board can now offer relief.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the fact of the case.  His reduction to pay grade E-1 was appropriate and in compliance with regulatory guidelines.

6.  The separation of soldiers under the provisions of Army Regulation 635-200 is administrative rather than punitive and as such “double jeopardy” does not apply.

7.  The Board notes that the applicant’s attachment to Fort Benning, Georgia while he was under going his civil court proceedings was appropriate and once the civil action was completed his return to the jurisdiction of his parent unit was necessary in order to accomplish his administrative separation.  

8.  The Board also notes that issues the applicant may have with his entitlement to VA benefits fall under the jurisdiction of that agency and would be more appropriately addressed to the Department of Veterans Affairs.

9.  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 that requirement.

10.  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

___cla__  ___wtm__  ___tbr__  DENY APPLICATION

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

INDEX

CASE ID	AR2000045772	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000907	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.