MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 08 NOVEMBER 2001
         DOCKET NUMBER: AR2001058671

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		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)

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APPLICANT REQUESTS: In effect, that he be reinstated in the Army with the restoration of all rights, privileges, and property. He also requests that all derogatory information be expunged from his official military personnel file (OMPF).

APPLICANT STATES: That his discharge under other than honorable conditions was upgraded to honorable by the Army Discharge Review Board. He states, in effect, that his case be reviewed by this Board.

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

The applicant was a military intelligence captain whose last period of active duty was from 28 September 1993 until 7 July 2000, his discharge date, and who had over 7 years of prior active service. He has completed numerous military courses and has been awarded the Army Commendation Medal (4^th award), the Army Achievement Medal (2^nd award), the Army Good Conduct Medal (2^nd award), the Armed Forces Expeditionary Medal, and the Southwest Asia Service Medal, among others. His officer evaluation reports show that he served in Alaska and at Fort Carson, Colorado.

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.

Under the provisions of Article 32, UCMJ, an officer was appointed to investigate the charges. The investigating officer conducted a hearing on 25 February 2000 and heard testimony from witnesses. The applicant and counsel were present at that hearing. The investigating officer determined that there was probable cause to establish each element of the offenses for which the applicant was charged. He stated that there were reasonable grounds to believe the applicant committed the offenses charged. He recommended proceeding to a general court-martial.

On 20 April 2000 the applicant voluntarily tendered his resignation from the Army for the good of the service under the provisions of Army Regulation 600-8-24, chapter 3, paragraph 3-13., He stated that he did not desire to appear before a court-martial or board of officers. He stated that he had not been subject to coercion with respect to his resignation and that he had been advised of and fully understood the implications of his action. He stated that he had been advised prior to submitting his resignation that he might consult with and be represented by legally qualified counsel, and that he had been fully advised and counseled by two members of the Judge Advocate General’s Corps on numerous occasions during 2000. He stated that he understood his resignation, if accepted, might be considered under other than honorable conditions. He stated that he understood the nature and consequences of his resignation.

The applicant submitted a statement to the effect that he had served in the Army for 14 years in three hostile fire zones. He stated that he desired consideration for a discharge under honorable conditions so that he could continue to support the military as a civilian with the Defense Intelligence Agency or National Security Agency. He stated that an honorable discharge would enable him to provide for his family and to enable his son, who has Downs Syndrome, to receive medical treatment if he (the applicant) continued service in the Department of Defense. He recounted his experiences and the accolades that he has received. He stated that the allegations against him were false and that he would welcome the opportunity to tell his side of the story.

Each commander in the applicant’s chain of command recommended approval of the applicant’s request, and also recommended that he receive a discharge under other than honorable conditions. The commanding general of Fort Carson noted the applicant’s remark that he would welcome the opportunity to tell his side of the story and stated that the applicant had numerous opportunities during the investigative process to explain his alleged conduct, but chose not to do so.

On 9 June 2000 the discharge authority accepted the applicant’s resignation and directed that he be separated from the Army 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.”

On 18 June 2001 the Army Discharge Review Board, in a majority decision, upgraded the applicant’s discharge to honorable. 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.

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 when court-martial charges have been preferred against the officer with a view toward trial by general-court martial. An officer separated under paragraph 3-13 normally receives a characterization of service of under other than honorable conditions.

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. The applicant chose to resign from the Army and request an administrative discharge rather than risk the consequences of a trial by general court-martial. His voluntary resignation for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There was no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2. The fact that the Army Discharge Review Board deemed it appropriate to upgrade his discharge to honorable is not good reason to reinstate him in the Army, nor reason to expunge the derogatory information contained in his OMPF. The reason for his resignation and the facts and circumstances which caused him to resign have not changed. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. 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.

4. 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

__FNE __ __BJE _ __FYF __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058671
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011108
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.	110.03
2.	134.02
3.	189
4.
5.
6.