MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2002066776

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		Member
Mr. John T. Meixell		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 his discharge be voided, that he be restored to the pay grade of E-7, and that he be restored to active duty in the Active/Guard Reserve (AGR) position that he occupied at the time he was discharged.

APPLICANT STATES: In effect, that the investigation into his alleged improprieties and adultery were done inappropriately and that he was bribed to resign. He goes on to state that at the time, he was serving in the pay grade of E-6 and was on the E-7 promotion list, while serving as a United States Army Reserve (USAR) recruiter in the AGR Program. Allegations were made by female soldiers whom he had recruited and had repeatedly rebuffed their sexual advances. He continues by stating that one of the recruits whom he was accused of having a sexual affair has repeatedly denied such conduct occurred and her statement, as well as the statement of her mother were never included in the investigation. He goes on to state that an anonymous caller reported to civilian authorities that he was engaging in misconduct with minors and after an investigation, the case was dismissed. He continues by stating that these unfounded allegations have destroyed his career and family. He also states that he requested a discharge in lieu of trial by court-martial because he was advised to do so by his legal counsel and because he wanted to get the civilian prosecution resolved before attempting to correct his military records. Accordingly, after a year and a half had passed, the prosecutor realized what the accusations were all about and dismissed the charges without prejudice. However, had these unjust accusations not occurred, he would have been promoted to the pay grade of E-7, instead of being reduced to the pay grade of E-1. He further states that his position within his command was damaged by his father-in-law, a retired colonel, who wrote to his commander about problems he was having with his ex-wife at the time. He also states that he has an excellent record of service and desires to continue his career. In support of his application he submits a copy of the military and civilian investigations into his case as well as supporting statements from one of the individuals and her mother, whom he was falsely accused of having an affair with, and a copy of the letter his ex-father-in-law wrote to his commander.

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

The applicant initially enlisted in the USAR on 22 May 1987, under the Delayed Entry Program. He enlisted in the Regular Army on 17 September 1987 and remained on active duty until he was honorably released from active duty in the pay grade of E-4 on 3 December 1993, under the Holiday Early Release Program. He enlisted in the South Carolina Army National Guard and remained in the National Guard until he was honorably discharged from the National Guard on 20 March 1995, and was transferred to the USAR. On 1 May 1996, he entered active duty in the AGR Program in the pay grade of E-5, for duty as a recruiter. He was promoted to the pay grade of E-6 on 1 February 1998. On 28 February 1998, the applicant was the subject of an allegation of sexual misconduct, which was subsequently closed as unsubstantiated.

On 10 January 2000, a report was received by the applicant’s command that he had conducted himself inappropriately with three female delayed training program members that he had recruited. An investigating officer was appointed on 12 January 2000, to conduct an investigation under the provisions of Army Regulation 15-6. The investigating officer (a major) concluded that the allegations were substantiated and recommended that the applicant be removed from recruiting duty and the Army. The applicant was suspended from recruiting duties on 12 January 2000 and submitted a rebuttal to the removal action contending that he did not know why he was being removed and that it was unjust to remove him until he had been proven guilty.

Meanwhile, on 27 January 2000, an anonymous caller called the Michigan State Police alleging that the applicant was engaged in criminal sexual conduct. An investigation was conducted and the applicant was arrested and charged with criminal sexual conduct-fourth degree. He was released on bail pending preliminary examination of the charges.

On 17 March 2000, charges were preferred against the applicant for four specifications of wrongful unofficial conduct with subjects of his recruiting efforts, one specification of wrongfully engaging in romantic and sexual conduct with a subject of his recruiting efforts, two specifications of wrongfully transporting unauthorized personnel in a government vehicle and using the vehicle for personal non-official use, one specification of wrongfully smoking in a government vehicle and allowing others to do so as well, two specifications of making a false official statement to a commissioned officer, one charge of committing sodomy with a subject of his recruiting efforts, two specifications of having sexual intercourse with subjects of his recruiting efforts who were not his wife, and three specifications of committing indecent assault on subjects of his recruiting efforts.

After consulting with counsel, the applicant submitted a request for discharge for the good of the service on 23 March 2000, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He further indicated that while he had been furnished legal advice, the decision was his own and he had no desire to perform further military service.

The appropriate authority (a major general) approved his request on 28 March 2000, and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 5 May 2000, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 4 years and 5 days of active service during his AGR tour and had a total of 10 years, 2 months and 22 days of total active service.

The charges by civil authorities were eventually dismissed without prejudice on 16 July 2001.

The unofficial statements from the individual and her mother with whom the applicant was charged with having sexual intercourse, serve to deny any such conduct.

The statement from his ex-father-in-law served to notify the applicant’s commander that while he was a good recruiter, he was not meeting his financial obligations to his family.

A review of the applicant’s records show no record of any disciplinary action and indicates that he had an otherwise successful career until charges were preferred against him.

A review of the investigations conducted by the Criminal Investigation Division (CID) and the Michigan State Police show that sworn statements were made by at least three individuals corroborating the conduct for which the applicant was charged.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions 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. 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him.

4. The applicant’s contention that he was innocent of the charges against him, which is substantiated by the statements from the individual and her mother, which refute the charge of having sexual intercourse, has been noted by the Board. However, the applicant had the opportunity to dispute those charges along with the other charges in a trial by court-martial and he elected not to do so. The Board will not at this time attempt to assess guilt or innocence based on the unofficial statements of two individuals, when there were at least 13 other specifications that he was charged with that do not relate to the statements provided.

5. 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.

6. 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

__md ___ ___jm___ __inw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066776
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/16
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2000/05/05
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.