PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 June 2002                   
	DOCKET NUMBER:   AR2001066261

	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. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Thomas Lanyi		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, on two separate applications, removal of unofficial records from his Official Military Personnel File (OMPF) and the entry
“3-15” in item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

3.  The applicant states that there are over 80 pages of documents on his OMPF that do not pertain to him.  These documents include a significant number of pages of a former soldier’s room inventory, utility disconnection notices, and 
other documents relating to the clearing of the deceased soldier from his unit.  He also states that in accordance with regulation these documents should not be included on his OMPF.  The separation authority listed in item 25 of his DD Form 214 is incorrect and at no time during his military career was he accused of or charged with homosexuality.  In support of his application, he submits copies of:  a DA Form 54-R (Record of Personal Effects) pertaining to the deceased soldier; a letter to the deceased soldier’s mother; a copy of DA Form 458 (Charge Sheet); and a copy of his DD Form 214.

4.  The applicant’s military records show he was commissioned as a second lieutenant in the USAR on 28 September 1993, with prior military service.

5.  A review of the applicant’s restricted (R) fiche of his OMPF revealed that the applicant had approximately 80 documents which included a significant number of pages pertaining to adverse actions, with enclosures.  It also included documents from the former soldier’s room inventory, utility disconnection notices, and other documents relating to the clearing of the deceased soldier from his unit.  

6.  On 24 January 2000, the applicant was charged with wrongfully and dishonorably purchasing and serving alcoholic beverages to a person under the legal drinking age, and wrongfully and dishonorably engaging in sexual conduct with that person while legally married to another person; with committing sodomy with that person; and by making a false official statement with intent to deceive.

7.  On 25 February 2000, an Article 32, Uniform Code of Military Justice (UCMJ), hearing was conducted which recommended proceeding to a general court-martial (GCM).

8.  On 9 June 2000, the discharge authority accepted the applicant’s resignation 
in lieu of trial by court-martial and directed that he be separated from the Army under the provisions of Army Regulation 600-8-24, paragraph 3-13 with an under other than honorable conditions discharge.  He was discharged on 7 July 2000.  
The narrative reason for his separation was “in lieu of trial by court-martial.”

9.  Item 25 (Separation Authority) of the applicant’s DD Form 214 shows the entry “600-8-24, PARA 3-13 or 3-15.”
10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  It also stated that documents with enclosures to related adverse actions, which resulted in elimination from the service, would be filed on the restricted (R) fiche of the OMPF.  

11.  Army Regulation 600-8-24, paragraph 3-13, states that an officer may submit a resignation for the good of the service in lieu of general court-martial (GCM) when court-martial charges have been preferred against the officer with a view toward trial by general-court martial.  Paragraph 3-15 states that an officer may elect to tender their resignation due to homosexual conduct prior to GCM charges being preferred against them under UCMJ and prior to being recommended for elimination.  An officer separated under paragraph 3-13 and
3-15 normally receives a characterization of service of under other than honorable conditions. 

12.  The Army Discharge Review Board, in a majority decision, upgraded the applicant’s discharge to honorable on 18 June 2001.  The board determined that the characterization of his service was inequitable because the overall length and quality of his service mitigated the discrediting entries in his service record.  The board determined, however, that the reason for his discharge was proper and equitable and voted not to change it.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that there are over 80 pages of documents on his OMPF that do not pertain to him.  The Board also notes that these documents pertain to the applicant’s adverse actions, with enclosures, and were used to form the basis for his elimination.  However, these documents were properly filed in the restricted portion of the OMPF in accordance with regulations.  The applicant has not shown that these documents were filed in error or were unjust.

2.  The evidence of record shows that the applicant was discharged in lieu of 
trial by court-martial under the provisions of Army Regulation 600-8-24, paragraph 3-13.  The applicant’s charges failed to show that he was charged with homosexual conduct.  However, item 25 (Separation Authority) of his DD Form 214 shows the entry “PARA 3-13 or 3-15” which is incorrect.  Therefore, the Board recommends that the entry “3-15” in item 28 (Narrative Reason for Separation) of his DD Form 214 be removed.

3.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case for the individual concerned be corrected by removing the entry “3-15” in item 25 (Separation Authority) of his DD Form 214. 

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

BOARD VOTE:  

__jns___  __eja___  ___tl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001066261	
SUFFIX		
RECON		
DATE BOARDED	20020625	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20000707	
DISCHARGE AUTHORITY	AR 6008-24, PARA 3-13/3-15	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	281	
2.		
3.		
4.		
5.		
6.