MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2001064786

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas Lanyi		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 the denial of his request for a waiver of his disqualification for enlistment be reversed and that he be permitted to reenlist.

APPLICANT STATES: That he entered active service on 5 November 1980. He was trained in military occupational specialty (MOS) 91B (Medical Specialist) and later became a practical nurse (MOS 91C). He served continuously on active duty until separated with an honorable discharge on 7 October 1996.

On 14 August 1995, while assigned to Fitzsimons Army Medical Center (FAMC), Denver, Colorado, he was tried before a summary court-martial for three specifications of indecent assault against two females. He was found not guilty of one specification at trial. Of the remaining two specifications, he was found guilty by exceptions and substitutions of assault consummated by a battery under Article 128, Uniform Code of Military Justice (UCMJ). However, he states that the court-martial convening authority "disapproved the finding of guilty as to one of those specifications." He was only sentenced to a reprimand, but because of his court-martial conviction, he was ineligible to reenlist.

On 6 March 1996, he states that he submitted a request for a waiver of his disqualification for reenlistment. He gathered letters of support from the commanders and staff with whom he worked. The FAMC Commander, a brigadier general, favorably endorsed his request. It was forwarded to Headquarters, Department of the Army (HQDA) where the Director of Enlisted Personnel Management, US Total Army Personnel Command (PERSCOM), denied it. He was forced to leave active service on 7 October 1996.

COUNSEL CONTENDS: In effect, that the applicant was the victim of error and injustice in that:

(1) His request for a waiver of his disqualification for reenlistment was meritorious and should have been approved;

(2) In denying his request for a waiver of his disqualification for reenlistment, the Director, Enlisted Personnel Management, PERSCOM did not consider the "whole person" as set forth in paragraph 3-7, AR 601-280;

(3) In denying his request for a waiver, the Director, Enlisted Personnel Management, PERSCOM acted in an arbitrary and capricious manner and did not provide an explanation for his denial, thereby failing to comply with the requirements of the Administrative Procedures Act (5 USC §551-59, 701-06, 1305, 3344, 5372, 7521); and

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(4) The Army never told him that he was eligible to reenlist after 2 years under the provisions of paragraph 4-9(b), Army Regulation (AR) 601-210.

EVIDENCE OF RECORD: The applicant's military records do not reflect his summary court-martial conviction. Available records show:

He was a sergeant first class (SFC/E-7) serving in military occupational specialty (MOS) 91C40, Practical Nurse. His last assignment was at Fitzsimons Army Medical Center, Denver, Colorado, from August 1991 through his separation from active service on 7 October 1996. He served as a wardmaster and as the noncommissioned officer-in-charge (NCOIC) of the Department of Surgery.

On 14 August 1995, the applicant was tried by a summary court-martial. He was charged with three specifications of violating Article 134, UCMJ, in that he did: wrongfully commit indecent assault upon [a female captain], a person not his wife, by kissing her on the back of the neck while in the workplace, with intent to gratify his lust and sexual desires on 14 November 1994; wrongfully commit indecent assault upon [name], a 16-year old female not his wife, by placing his hands on and massaging her thigh in the workplace, with intent to gratify his lust and sexual desires between 15-25 July 1995; and, wrongfully commit an indecent assault upon [name], a 16-year old female not his wife, by grabbing her dress and lifting it while in the workplace, and communicating to her "Do you have anything on underneath there," or words to that effect, with intent to gratify his lust and sexual desires.

The applicant pleaded not guilty to each specification and was found not guilty of the second specification. However, he was found guilty of two specifications of Article 128, UCMJ (assault consummated by a battery), for unlawfully kissing [a female captain], a person not his wife, on the back of the neck in the workplace, and wrongfully touching a 16-year old female, a person not his wife, by grabbing her dress and lifting it in the workplace. The court-martial convening authority disapproved the finding of guilty as related to the first specification (kissing the female captain) and reprimanded him for the finding of guilty as to the third specification (lifting the 16-year old's dress).

The applicant petitioned The Judge Advocate General of the Army for relief pursuant to Article 69(b), UCMJ. On 5 March 1996, The Judge Advocate General denied relief.

On 6 March 1996, the applicant petitioned the Commander, PERSCOM, requesting, as an exception to policy, a waiver that would allow him to reenlist with a court-martial conviction. The request was processed through his chain of

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command and favorably endorsed at all levels. In it, the applicant explained that he " . . . erroneously touch[ed] a summer youth['s] clothing while trying to make a correction of her attire, which I deemed inappropriate for the work place." He stated that his actions were wrong and "This kind of behavior will never happen again." On 19 April 1996, the Director of Enlisted Personnel, PERSCOM, denied the applicant's request stating, "[Applicant] has not presented sufficient justification to warrant approval of his request."

On 7 October 1996, the applicant was separated from active service in the rank of SFC with an honorable discharge. He had 15 years, 11 months, and 3 days of creditable service.

Army Regulation 601-280 (Army Retention Program) prescribes criteria for the Army Retention Program and sets forth policies and command responsibilities for immediate reenlistment or extension of enlistment of soldiers currently serving in the Active Army, and enlistment/transfer and assignment of soldiers processing from the Active Army to the Reserve Components of the U.S. Army. It states, in pertinent part, that soldiers with a court-martial conviction during their present term of service are ineligible for immediate reenlistment unless they obtain a waiver from the Commander, PERSCOM. It also states that, in evaluating a potential reenlistee, a commander should consider the "whole person" concept.

The Administrative Procedures Act (APA) (5 USC §551-59, 701-06, 1305, 3344, 5372, 7521) was passed in 1946 to clarify the process of making regulations, and to allow greater accessibility and participation by the public in the rulemaking process. In general, the APA requires the publication in the Federal Register of most rules, and a period for public comment.

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 committed an offense punishable under the UCMJ and his court-martial convening authority referred him to trial by court-martial. He was charged with three specifications of indecent assault under Article 134, UCMJ,

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and convicted of two specifications of assault and battery under Article 128, UCMJ. The court-martial convening authority approved only one specification involving the lifting of a 16-year old summer hire's dress. As punishment, the applicant was reprimanded. He made application under Article 69(b), UCMJ, for relief from his conviction, but was denied.

3. Because of his conviction, the applicant could not reenlist without a waiver approved by PERSCOM. His request for waiver was denied and the reason given was because he had not submitted sufficient justification to grant such a waiver. The applicant's contention that his request for waiver was meritorious is nothing more than his opinion. Obviously, the Director of Enlisted Personnel Management, PERSCOM, did not find the request sufficiently meritorious to warrant granting a waiver.

4. The applicant's assertion that the Director of Enlisted Personnel Management, PERSCOM, did not consider the "whole person" in deciding the issue of his request for waiver is simply his interpretation of the final outcome and is without merit.

5. The applicant's assertion that the Director of Enlisted Personnel Management, PERSCOM, acted in an arbitrary and capricious manner and denied him due process or violated the APA is without merit. Pertinent Army regulations state that the authority to grant a waiver of a court-martial conviction disqualification for enlistment rests with PERSCOM. The applicant has not shown that the approving authority acted in an arbitrary and capricious manner and this Board assumes Government regularity in the review process. The argument that the approving authority failed to comply with the APA is specious; the APA is not applicable in this case.

6. The Army is not obligated to inform the applicant that he could apply for reenlistment at a later date. As a senior NCO involved in a career-ending dilemma, he should have thoroughly researched all applicable regulations in order to determine all available options open to him. The evidence shows that he was sufficiently informed to know that he required a waiver to reenlist, and that he had the option of requesting relief from his conviction under Article 69(b), UCMJ. The onus of exploring every available option resided with the applicant.

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

___aao__ __kah___ __tl____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064786
SUFFIX
RECON
DATE BOARDED	20020730
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0300
2.
3.
4.
5.
6.