PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  28 July 1999     
	DOCKET NUMBER:   AR1999022886

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Rosa M. Chandler .		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

3.  The applicant states in effect, that he was not afforded due process.

4.  The applicant’s military records show that he successfully completed three previous periods of honorable service from 19 August 1965 - 16 August 1968.  He had a short break in service.  He reenlisted and served honorably from 19 October 1970 - 31 July 1972, and from 1 August 1972 - 11 May 1978.  

5.  The applicant served 11 months in the RVN.  The dates are unclear, but it would appear to have been during his first enlistment from 1965 - 1968.

6.  On 12 May 1978, he reenlisted for 6 years, military occupational specialty (MOS) 91E (Dental Assistant) and pay grade E-5.  On 13 September 1978, he was promoted to pay grade E-6.  

7.  The applicant's awards consist of the Army Commendation Medal, the Good Conduct Medals (four awards), the National Defense Service Medal, the Republic of Vietnam (RVN) Service Medal, the RVN Cross of Gallantry Unit Citation with Palm, the RVN Civil Actions Honor Medal, and the Combat Medical Badge.

8.  An initial Criminal Investigation Division (CID) report of investigation revealed that the applicant, while estranged from his wife, engaged in a sexual relationship with two female soldiers (a specialist, pay grade E-4 and a private, pay grade E-2).  The private was a subordinate.  He cohabited with the specialist and fathered a child while he was legally married.  

9.  On 15 March 1983, a CID report of investigation stated that even though the report of investigation had not been finalized, it was unlikely that the remaining leads would produce any significant new evidence.  The evidence that had been provided was sufficient enough for the command to initiate any action deemed appropriate.

10.  An Army Council of Review Boards Case Report and Directive, dated 14 June 1985, shows that on 15 March 1983, court-martial charges were preferred against the applicant for violation of a general lawful regulation by socializing with, having sexual intercourse with and committing adultery with a private, a female subordinate from 1 November - 31 December 1982.  He was also charged with violation of a lawful general regulation by socializing with a private first class; orally communicating indecent language to and repeatedly making sexually explicit comments to a private first class, 23 June 1982, which was classified as sexual harassment, and for committing adultery with a specialist four, 1 September - 
30 November 1982.  

11.  The sexual harassment accusation by the PFC was recanted and the accusation was dropped after a polygraph examination.

12.  On 21 March 1983, the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  He did not submit a statement in his own behalf. 

13.  On 23 March 1983, a mental status evaluation cleared the applicant for separation.  On the same day, the unit commander recommended approval and the issuance of a UOTHC discharge.  On 25 March 1983, competent authority approved his request.  

14.  On 1 April 1983, he was separated under the provisions of chapter 10, Army Regulation 635-200, with a UOTHC discharge for the good of the service-in lieu of trial by court-martial.  He had completed 4 years 10 months and 26 days on the enlistment under review and he had completed 10 years 6 months, and 
22 days of total prior active service.

15.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) also reflects that he had 12 years, 8 months and 25 days of total prior inactive service.  This service is in error.  He had a total of 2 years,
2 months, and 2 days total prior inactive service. 

16.  On 14 June 1985, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although, an honorable or general discharge was authorized, a UOTHC discharge was then considered appropriate.

CONCLUSIONS:

1.  The applicant's UOTHC discharge issued on 1 April 1983, for the good of the service, was administratively correct and in conformance with the applicable regulations then in effect.

2.  The Board determined that even though one female soldier's allegation was recanted and dropped, other evidence available was sufficient enough to support the UOTHC discharge.

3.  The applicant was provided legal counsel.  He voluntarily requested separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, to avoid trial by court-martial.  There is no indication that the request was made under coercion or duress.

4.  The Board found no evidence of arbitrary or capricious actions by the command.

5.  Therefore, it would not be appropriate to change the records to show the
applicant was honorably discharged from his fourth enlistment for the period 
12 May 1978 - 1 April 1983.

6.  However, it appears that he should have been considered as having been issued a complete and unconditional separation for the honorable periods of service from 19 August 1965 - 16 August 1968 , from 19 October 1970 - 31 July 1970 and from 31 August 1972 - 11 May 1978.  These three periods of service were fully satisfactory.  This would provide a basis for the Department of Veteran Affairs to take favorable action on any requests from the applicant for veteran benefits based on these periods of honorable service.  

7.  Additionally, the applicant's record should be corrected to show that he served only 2 years, 2 months and 2 days of total prior inactive service.

8.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

a.  that the individual concerned was eligible for a complete and unconditional separation from the military at the time of his honorable discharge on 11 May 1978; and 

	b.  that his DD Form 214, Item 12e (total prior inactive service) be corrected to show 2 years, 2 months and 2 days.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

FNE____  LEM____  MVT_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999022886	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19830401	
DISCHARGE AUTHORITY	AR 635-200, Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.	A01.39	
3.		
4.		
5.		
6.