MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2000                   
	DOCKET NUMBER:   AR1999032268

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine 		Chairperson	
	Mr. Stanley Kelley 		Member	
	Mr. John H. Kern 		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 essence, upgrade of his under other than honorable conditions (UOTHC ) discharge to an honorable discharge and to change the reason for discharge to one which is for the convenience of the Government.  

APPLICANT STATES:  In effect, that his discharge is unjust because it was based on an isolated incident in 30 months of active military service and 
12 months of inactive service;  because the incident could not occur today since there is no interzonal border separating Germany;  because his conduct and efficiency ratings were always good and his record of specialty school completion and promotion was good;  because he has had good post service adjustment, he has been a public school teacher and an athletic coach for more than 10 years.  He has often counseled his students about patriotism and the virtues of military service.  His less than honorable discharge places a heavy burden on him in this capacity. In connection with this issue, he submits two character references, the first from his middle school principal which shows he is a highly effective teacher and coach and the second is from a retired Army colonel who states he is personally aware of the many fine attributes of the applicant.  He was his Professor of Military Science at Rutgers University and was assigned in the same general area as the applicant in Germany.  The applicant’s command encouraged “warrior” type activities, and perhaps, while his activities were immature, his command handled the separation actions incorrectly.  He was made an example of and perhaps this was prompted by “personal racial prejudice.”  He has been an outstanding community citizen since his discharge.  Finally, the applicant contends that he has suffered the consequences of his discharge for long enough.  He is a good, law abiding citizen.  He has served his community and gained a Masters Degree in Education.  

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

He was appointed and commissioned as a second lieutenant, Infantry, United States Army Reserve (USAR) from a Reserve Officers’ Training Corps (ROTC) program at Rutgers University on 21 May 1981.  While in the ROTC program, he completed an Air Assault School at Fort Campbell, Kentucky in 1980.  

However, he continued at Rutgers for another year, and the applicant was a member of the USAR Control Group (Inactive).  On 29 May 1982, he was commissioned as a second lieutenant, Armor, Regular Army.  He was immediately called to active duty, completed the Armor Officer Basic Course at Fort Knox, Kentucky and the Basic Airborne School and the Ranger School, both at Fort Benning, Georgia.  On 19 February 1983, he was assigned as a platoon leader to a Cavalry troop of the 2nd Squadron, 11th Armored Cavalry Squadron in Germany.  He achieved course standards at the basic course, and his first officer evaluation report was a below standard of mass report, but with favorable comments since this was his first report.  His second report was a solid standard of mass report with favorable comments and that he had good potential.

However, on 11 July l984, the applicant was charged with six charges, involving 
20 specifications of violation of Articles 80, 81, 92, 121, 133 and 134 of the Uniform Code of Military Justice, on or about 25 May 1984.  These included one specification of attempting to steal a Border marking plaque, the property of German Democratic Republic (GDR), also known as East Germany;  one specification of conspiring with a sergeant and two specialists to commit larceny of the Border crossing plaque and violation of a lawful general order not to cross into the GDR; three specifications of violation of a lawful general regulation by entering the GDR, that he was derelict in the performance of duty by willfully allowing service members junior to him to enter the GDR and that he failed to report the illegal border crossings;  two specifications of theft of the Border crossing plague and a roll of film, value of about $4.00, the property of a private;  
10 specifications of conduct unbecoming an officer by entering the GDR to steal the Border crossing plaque, and by permitting his subordinate enlisted personnel to participate in the theft of the plaque;  and by soliciting a sergeant to steal a roll of film from a private, by instructing witnesses to not testify truthfully to the knowledge of the illegal Border crossing incident and by himself making a false official statement that “’I have no knowledge of an alledged (sic alleged) border violation on or about 25 May 1984’”

On 6 August l984, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 5, Army Regulations 635-120.  He elected not to present any matters in explanation, mitigation, or defense of his case and elected to remain silent.  He stated that he understood that his request could be considered as being under less than honorable conditions and that he could receive a UOTHC discharge.  He also was counseled that he could lose entitlement to payment for accrued unused leave and no severance or readjustment pay as well as that he could be barred from many veteran benefits administered by the Veterans Administration, now the Department of Veteran Affairs.  

Even though his case had been referred for trial by a general court-martial, court-martial action was delayed pending action on his request for discharge for the good of the service.  

His troop, squadron and regimental commanders recommended approval of the request for resignation, but with the issuance of a general discharge, under honorable conditions.  However, the area brigade commander and the area general court-martial convening authority (a major general commanding the 
3rd Infantry Division) recommended approval with a UOTHC discharge.

On 5 October 1984, the Army Ad Hoc Review Board, Army Council of Review Boards, Department of the Army (DA), recommended that the request for resignation be accepted and approved with issuance of a UOTHC discharge.  On 15 October l984, the Acting Deputy Assistant Secretary (DA Review Boards and Personnel Security) approved the request for resignation and directed that the applicant be discharged with a UOTHC discharge.  

On 4 December l984, the applicant was discharged UOTHC, under the provisions of chapter 5, Army Regulation 635-120, by reason of conduct triable by court-martial.  He was credited with 2 years, 6 months and 9 days active service.  His awards and decorations included the Army Service Ribbon, the Sharpshooter Badge (.45 Caliber Pistol), the Parachute Badge, the Air Assault Badge and the Ranger Tab.

On 24 June 1986, the applicant and his counsel personally appeared before the Army Discharge Review Board (ADRB).  However, the ADRB unanimously denied his request for an upgrade of his discharge.

Army Regulation 635-120, then in effect, in pertinent part, set forth the basic authority for the resignation and/or discharge of officer personnel.  Chapter 5 of that regulation provided, in pertinent part, that an officer could voluntarily submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward a trial by general court-martial or when he or she were under a suspended sentence of dismissal.  When approved by the Department of the Army, a resignation for the good of the service was normally accepted UOTHC.  

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.  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, in this case, has failed to submit evidence that would satisfy this requirement.

2.  The applicant's voluntary request for resignation for the good of the service under the provisions of Army Regulation 635-120, chapter 5, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

3.  The Board finds that the charges with which the applicant was faced were serious.  He deliberately placed both himself and his men in a dangerous situation, which endangered their lives and/or could have resulted in a serious international incident which would have brought great discredit on the United States of America, the United States Army and his unit.  Whether or not the international borders now exist is not germane to the case;  they existed in 1984. 

4.  The applicant also lied during the investigative phase of the case.  He deliberately made a false statement which he knew was not true.  He also attempted to coerce other soldiers to discredit themselves by giving false testimony.  Therefore, he brought great discredit on himself and the trust placed in him as an Army officer.  By his actions, he took away his own integrity and impugned the special trust placed in him to lead his soldiers into combat.

5.  The Board concludes that, notwithstanding a generally satisfactory record of service and his command’s belief that he had potential for further service before the incident in question, his single serious act, whether it was isolated or not, degraded his ability to continue to serve as member of the Army.  This act was so serious that the characterization of service was appropriate.  

6.  The applicant’s post service accomplishments are commendable and his efforts to encourage the patriotism of our youth are praiseworthy.  However, these acts do not overcome the serious nature of his own actions and provide an insufficient basis to upgrade his discharge.  

7.  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

__tsk___  __sk_____  __jhk____  DENY APPLICATION

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

INDEX

CASE ID	AR1999032268	
SUFFIX		
RECON		
DATE BOARDED	20000725	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19841204	
DISCHARGE AUTHORITY	AR635-120, CH 5	
DISCHARGE REASON	A80.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	110.00	
3.	A01.01	
4.	A01.13	
5.	A92.00	
6.	A92.35