CASE NO:  AD97-01512

PART II - APPLICATION DATA
(Note: Part I deleted under the Privacy Act on Reading Room copy)

1.  Type of discharge (or characterization of service):  UOHC                    

2.  Date of discharge (or REFRAD):  881128                                          

3.  Authority for separation:

	a.  Regulation:  Chapter 5, AR 635-120                                                        

	b.  Reason:	Conduct Triable by Court-Martial
                           
4.  Prior review(s):  920327, Personal Appearance before ADRB

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review

1.	Service data:                              2.  Awards and decorations:
    
a.  Period entered for:  3 Years               Type
b.  Entry date:  840117                        ARCOM                             
c.  Age:  44  Years   DOB:  390319             OSR                                               
d.  Educational level:  Col Grad               L/C                                           
e.  Aptitude area scores:  ( X ) NIF/NA
	    GT:  NIF                               3.  Highest grade achieved:
    f.  Actual creditable service:  4  Years            
        10  Months  12  Days                       Grade    
                                                   CPT         

4.  Performance evaluations:  See OERS  

5.  Periods of unauthorized absence:  ( X ) NONE

6.  Nonjudicial punishment:  ( X ) NONE

7.  Court-Martial data:  ( X ) NONE

8.	Remarks:  ( X ) NONE

SECTION B - Other Service Data

1.  Other discharge(s):

    Service          Type
    USAR             NA

                                                   

	CASE NO:  AD97-01512

PART IV - PREHEARING REVIEW
SECTION A - Analyst's Assessment

1.  Summary of facts and circumstances concerning discharge:

	880928:	Applicant was charged with conduct unbecoming an officer by writing 		letters and notes which were apparently romantic in nature to a male 		soldier on diverse occasions; and with engaging in indecent acts 		with a male soldier on diverse occasions between 15 May and 30 June 		1988.
	880930:	Applicant consulted with legal counsel and voluntarily tendered his 		resignation from the Army for the good of the service under the 			provisions of Chapter 5, AR 635-120.  He did not submit a statement 		in his own behalf.
   Undated:	Unit, intermediate, and senior intermediate commanders recommended 		approval with issuance of an under other than honorable conditions 		discharge.  The GCMA recommends issuance of a general discharge.
	881026:	Ad Hoc Review Board met.
	881027:	Deputy Assistant Secretary (DA Review Boards and Equal Employment 		Opportunity Compliance and Complaints Review), approved the 			recommendation of the DA Ad Hoc Review Board to accept applicant’s 		resignation for the good of the service under the provisions of 			Chapter 5, AR 635-120 which issuance of an under other than 			honorable conditions discharge.
	881028:	Physical examination medically cleared applicant for separation.
	881128:	Applicant was discharged.

2.  Issue(s) of propriety and/or equity on DD Form 293 or incorporated by reference:
	1.  “Wrongful/malicious prosecution”
	2.  “Command influence/malparactice [sic]”
	3.  “Ineffective representation/malpractice”
	4.  “Undue process”
	5.  “Involuntary resignation”

3.  Exhibit(s) submitted:

	A-1:  DD Form 293, dated 900325. 
    B-1:  Orders from the Northern District of California, dated 961226.
    B-2:  Declaration from the Army’s Litigation Division, dated 960304.
    B-3 thru B-4:  Depositions from the U.S. District Court of Northern
          District California, dated 960308 and 960304.
    B-5 thru B-6:  Declarations from the U.S. District Court of Northern 	  	      California, dated 960525 and 960226.    

										CASE NO:  AD97-01512

PART IV - PREHEARING REVIEW
SECTION B - Medical and/or Legal Advisory Opinion

     This case was remanded to the Board pursuant to the order dated 26 December 1996 of the United States District Court for the Northern District of California for further consideration in light of new evidence made available subsequent to the applicant’s previous application to this Board.

PART V - SUMMARY OF REVIEW HEARING

	a.  Applicant testified:    (   ) Yes   ( X ) No

	b.  Witness(es) testified:  (   ) Yes   ( X ) No

2.  Exhibit(s) submitted at hearing:  ( X ) NONE

			CASE NO:  AD97-01512

PART VI - ISSUES AND FINDINGS

1.  a.  Applicant's issue(s) of propriety and/or equity:

	    ( X )	Same as those listed on DD Form 293 and Part IV, Section A, Paragraph 2.
	    (   )	Revised issue(s) furnished in writing by applicant as follows:
	    ( X )	Additional issue(s) identified during review/hearing as follows:
	      
        Board issue:  (6) Characterization of service too harsh.

    b.  Request:  ( X ) Recharacterization    (   ) Change of Reason

2.  Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:

	a.  Propriety:	The parenthetical numbers below correspond to the issue numbers on the DD Form 293, or in Part VI, Paragraph 1, above.

        (1)  The issue is rejected.  The Board carefully and wholly considered the new evidence presented by the applicant.  The Board noted that the applicant was separated under the provisions of AR 635-120, Chapter 5, Resignation for the Good of the Service.  The evidence of record does not substantiate the applicant’s issue of wrongful/malicious prosecution.  The applicant was charged with the commission of offenses punishable under the Uniform Code Of Military Justice with a punitive discharge.  Given the applicant’s rank and duty position, the charges constitute a significant departure from the conduct/performance of duty expected of an officer and a member of the Chaplain Corps.  The Board further noted, notwithstanding the applicant’s claim of ineffective representation/malpractice, that after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  The Board further noted that a resignation for the good of the service, when approved in HQDA, is normally accepted as being under other than honorable conditions, and that the applicant was aware of that prior to requesting discharge.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

        (2)  The issue is rejected.  The applicant has not submitted any new or relevant information to support his claim of wrongful command influence.  By the evidence of record, the applicant was charged with conduct unbecoming of an officer and engaging in indecent acts with a subordinate enlisted soldier.  Upon close examination of the victim’s statement, and by the applicant’s own admission, the Board determined that the command had credible information upon which to prefer charges and sufficient evidence as to their veracity.  Given the applicant’s trusted position, rank, and maturity, the Board was convinced that the command’s actions were consistent with maintaining good order and discipline and justified by his conduct.  While the actions of separate commands may differ, the Board was satisfied that the chain of command acted properly and responsibly in this particular case.  There is nothing in the record to substantiate undue command influence.

        (3)  The issue is rejected.  The record does not support the applicant's contention, and no evidence to support it has been submitted by the applicant, that the applicant had ineffective representation or that his assigned counsel was incapable or guilty of malpractice.  The applicant’s counsel was an attorney-at-law assigned to the US Army Trial Defense Service (TDS), Baumholder, Germany.  He was a member of the Army Judge Advocate General Corps and had previous experience in military justice and administrative law.  Based on the evidence of record, the Board determined that the applicant’s counsel provided proper advice and counsel regarding administrative and legal options available to the applicant.  There is nothing in the record to substantiate the fact that either the applicant or his counsel were subjected to undue coercion or pressure from the command or that the applicant’s military assigned counsel did not represent him in a proper and consistent manner.
CASE NO:  AD97-01512

PART VI - ISSUES AND FINDINGS (Cont)

        (4)  The issue is rejected.  The Board was convinced that the applicant was given all due process in accordance with the laws and regulations of the military in effect at the time.  The applicant was properly charged with the commission of a serious offense punishable under the Uniform Code Of Military Justice.  The applicant was afforded the option to have his case heard by a military court of law or to request resignation for the good of the service in lieu thereof.  By the evidence of record, the government established a prima facie case sufficient to pursue trial by court-martial.  Had there been a finding of guily, the sentence would have in all likelihood included a dismissal from the service.  By submitting a resignation, the applicant avoided this possibility as well as that of a federal conviction resulting from a finding of guilty.  While the applicant claims that he and/or his counsel were coerced and/or pressured into accepting this option by the threat of a possible dismissal and confinement, the fact remains that the applicant made a voluntary choice based on the best guidance of his counsel and superiors and avoided a more severe discharge and/or federal conviction.  The Board was convinced that the claim of the applicant of undue process is without merit.

        (5)  The issue is rejected.  The applicant voluntarily and in writing requested resignation for the good of the service in lieu of trial by court martial.  The Board can understand the applicant’s situation, but the fact that he had to choose between two undesirable options does not constitute involuntary resignation.  It is a matter of record that the applicant voluntarily requested discharge and was fully aware of the benefits and undesirable effects of doing so.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	b.  Equity:	The parenthetical numbers below correspond to the issue numbers on the DD Form 293, or in Part VI, Paragraph 1, above.

        (6)  The issue is accepted.  The Board carefully examined the applicant's overall record during the period of service under review and additional information presented to the Board.  Upon further review, and taking into consideration the applicant’s overall record of service and his aberrant behavior, the Board determined the discharge to be inequitable.  The Board was satisfied that the applicant's quality of service determination at the time of discharge was inconsistent with the faithful and honorable service rendered by the applicant during the period of service under review.  There was a full consideration of all service including  infractions of discipline, the extent thereof, and the seriousness of the offenses.  While the Board does not condone the actions of the applicant, it determined the that applicant's generally acceptable personal conduct and performance of duty over his entire period of service outweigh the discrediting information in the record.  The applicant's failure to perform in accordance with Army standards was outweighed by service of sufficient merit to warrant an upgrade of the discharge being reviewed.  Accordingly, the Board voted to grant partial relief in the form of a general, under honorable conditions, discharge.  The Board was satisfied that the reason for discharge was proper and equitable, and to change it would be inappropriate.

3.  Response to item(s) not addressed as decisional issue(s):  ( X ) NA

			CASE NO:  AD97-01512

PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.	Board conclusion(s):

	The discharge was:

	( X )	Proper.
	(   )	Improper as to characterization.  Change characterization to                                     .
	(   )	Improper as to reason.  Change reason to                         under                      .
	(   )	Equitable.
	( X )	Inequitable as to characterization.  Change characterization to  Under Honorable Conditions (General)    .
	(   )	Inequitable as to reason.  Change reason to                       
		under                                 .
	(   )	Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                         .

2.  Voting record:      Change   No Change
	            Reason       0         5  
    Characterization       5         0   

	  The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below.  The request must contain the CASE NO. located in the upper right corner of this document.

                  Department of the Army Review Boards Agency
                  ATTN:  CPCD
                  1941 Jefferson Davis Highway, 2nd Floor
                  Arlington, VA  22202-4508

3.  Minority views:  ( X ) NA

				CASE NO:  AD97-01512

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified	

                          	
COL MELCHIOR                                                                              
Post Hearing Reviewer	

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

TO:  Commander, ARPERCEN
     The Army Discharge Review Board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part I directs that:

(  ) Characterization of discharge be changed to 			Uncharterized.
	(  ) Characterization of discharge be changed to Honorable.
	(X ) Characterization of discharge be changed to Under 	 	     Honorable Conditions.
	(  ) Reason and authority for discharge be changed to 	    	     Misconduct under AR 635-200.
	(  ) Other (see remarks below).
Remarks:  	(X ) None

SECTION B - CERTIFICATION

Approval Authority:

EL CARTIO BARNES
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:

SHERRY HILL SARGENT
Major, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge              	C - Other 
B - Material submitted by applicant

INDEX RECORD:

AD9701512         970423    UD    881128    AR 635-120  C5    A8600   GD 5-0 A
1          10 11 12        18    20        26                41      46 49  52

                  A9200   A0100   A9500                                       
                 53      58      63                                           

			CASE NO:  AD97-01512

PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC  UNCHAR

    1.  MAJ WYRICK, JIMMY R.          Mbr           X            X            

    2.  LTC PHILLIPS, JOHN S.         Mbr           X            X            

    3.  COL ALLEN, THOMAS J.          Mbr           X            X            

    4.  COL MELCHIOR, ROBERT J.       Mbr           X            X            

    5.  COL MATHEWS, WILLIAM          PO            X            X