MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 10 October 2001
         DOCKET NUMBER: AR2001060741

         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
Ms.	Antoinette Jones-Farley		Analyst

The following members, a quorum, were present:

Mr.	Luther L. Santiful		Chairperson
Mr.	Charles Gainor		Member
Mr.	Joe R. Schroeder		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: That his under other than honorable conditions (UOTHC) discharge be reviewed and upgraded to an general discharge (GD) under honorable conditions discharge.

APPLICANT STATES: In essence, that he believes that his discharge is in error or unjust because it is other than honorable. The applicant submits no additional information in support of his case and therefore relies on his military records.

EVIDENCE OF RECORD:

The applicant’s military record shows that prior to the period of service under review he completed an honorable period of inactive service for a total of 3 years, 4 months and 29 days. On 25 May 1995, he enlisted in the Regular Army for
3 years. His DD Form 214, also shows that throughout his enlistment he held three different military occupational specialties (MOS). He maintained MOS
67S10 (Helicopter Repair) for 3 years and 2 months, MOS
98J10 (Noncommunication Interceptor/Analyst) for the next 4 months and remained in MOS 51B10 (Carpentry and Masonry Specialist) until separation.

On 9 September 1999, while stationed at Fort Drum, the applicant underwent two separate criminal investigations. The initial criminal investigation was conduct by the State of New York, Jefferson Town Court of Wilna New York, for allegations of rape in the third degree of a child under the age of 16 years on 8 July 1999.

On 28 October 1999, a second investigation was conducted by the Military Criminal Investigation Command (CID), Fort Drum, New York, for allegations of committing sodomy by force of another soldier and unlawfully breaking and entering the barracks room of said soldier with the intent to commit sodomy.

On 30 November 1999, the State of New York in conjunction with the CID, concluded the first investigation with the following findings. The joint investigation titled the applicant for committing the offense of carnal knowledge and sodomy with a minor child under the age of 16 years.

On 15 March 2000, as the result of these investigations charges were preferred against the applicant for committing sodomy and for committing the offense of carnal knowledge with a minor child under the age of 16 years, on 1 and 31 August 1999. He was also charged with committing sodomy by force and without the consent with a female Private E-2 and for unlawfully breaking and entering the barracks room of the Private E-2 with intent to commit sodomy on 9 October 1999.

On 24 May 2000, the applicant consulted with legal counsel and voluntarily 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 indicated that under no circumstances did he desire further rehabilitation. He acknowledged that, he was guilty as charged or of a lesser-included offenses for which he could receive a punitive discharge. He also acknowledged, that he understood the nature and consequences of the UOTHC discharge that he might receive, including that he might lose some or all veteran benefits.

On the same day he elected to submit a statement in his own behalf. In essence, his statement pointed out that he had served with pride and distinction while in the Regular Army and Army Reserve for the past 8 years. He also pointed out that his connection with the Army was because his father’s 23-year career in the military and he himself chose to enter the Army, at the age of 18. He believed, what contributed to his overall success in the Army was being able to teach or assist junior soldiers and possibly one day becoming an noncommissioned officer. He further admitted, that he erred in judgement when touching the Private E-2, in any manner the evening of
9 October 1999, while she (E-2) was intoxicated. Therefore, he contends, that based on that finding alone, he requested a chapter 10 because he would have had a federal conviction that would follow him for the rest of his life. He claimed, that the other charges are simply untrue. He further claimed, that at the Article 32 hearing, a witness testified that he did not believe the allegations brought against the applicant. Finally, the applicant stated that he never thought his career would end this way. The unit and intermediate commanders concurred with the recommendation for an other than honorable discharge.

On 24 May 2000, the separation authority, approved the recommendation and directed he be discharged with an UOTHC.

On 7 June 2000, the applicant was separated with a UOTHC, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial. He had 5 years and 13 days of creditable service, 3 years,
4 months and 29 days of prior inactive service and no lost time. The highest grade he achieved was pay grade E-4.

The Manual for Courts-Martial, Table of Maximum Punishments, provides that the applicant could have received a punitive discharge for committing sodomy, committing the offense of carnal knowledge with a minor child under the age of
16 years, for committing sodomy by force and without the consent with a female Private E-2, and for unlawfully breaking and entering the barracks room of the Private E-2 with intent to commit sodomy.

The applicant also received two Army Discharge Review Board (ADRB) reviews. The first review by the ADRB was on 7 March 2001, the second review was by the ADRB (personal appearance) on 30 July 2001. Each board denied the applicant’s requests for an upgrade and a change in the reason for his discharge.

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 a discharge for the good of the service in lieu of trial by court-martial. The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Although an honorable or a general discharge is authorized, a discharge UOTHC is normally considered appropriate.

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 has failed to submit evidence that would satisfy this requirement.

2. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that he received less than competent legal counsel or that his request was made under coercion or duress.

3. Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

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

__LLS___ __CG___ ____JRS_ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060741
SUFFIX
RECON
DATE BOARDED	2001.10.09
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/06/07
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	A94.07
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.
2.
3.
4.
5.
6.