MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 19 NOVEMBER 2002
         DOCKET NUMBER: AR2002071126

         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. John N. Slone		Chairperson
Ms. Sherri V. Ward		Member
Mr. Melvin H. Meyer		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, the applicant requests that his discharge under other than honorable conditions be revoked and that he be reinstated in the Army Reserve; or, if that is not possible, that his discharge be upgraded to honorable.

APPLICANT STATES: That the involuntary separation action was initiated without his knowledge. He did not receive notification that a board action had been initiated. He was deprived of his rights to an administrative separation board. His command was aware that he had consulted with a legal officer. Nonetheless, he was involuntarily discharged without benefit of an administrative separation board. At no time did his command attempt to contact his legal counsel.

The applicant’s civilian counsel forwarded the applicant’s application to this Board on 21 March 2002, without comment, requesting that the response be directed to him (counsel).

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

The applicant served on active duty from 15 January 1968 through 6 January 1970, to include one year of service in Vietnam. He was released from active duty with an honorable characterization of service in the grade of E-5. He served in an inactive status in the Army Reserve until his discharge in 1974. On 16 July 1983 he enlisted in the Army National Guard where he remained until 1996. He was discharged from the Army National Guard on 15 January 1996 because of unsatisfactory performance with a general (under honorable conditions) discharge, and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis. He was discharged from the Army Reserve on 16 July 1996. His discharge was honorable.

The applicant’s military records subsequent to his discharge in 1996 are those submitted by the applicant. His official military personnel file is not available.

The applicant submits numerous documents reflecting his military service, to include orders showing his promotion to staff sergeant and promotion to sergeant first class, apparently not effected because he was flagged on the effective date of that promotion; academic evaluation reports showing the schools he successfully completed, to include the basic and advanced NCO schools; certificates of training showing numerous courses that he completed; NCO evaluation reports showing that he was a capable NCO; a report showing his successful completion of the Army physical fitness test; letters of commendation, letters of appreciation, award certificates, etc., to include documents showing award of the Army Commendation Medal and Army Achievement Medal.

The applicant was a staff sergeant assigned to the 391^st Military Police Battalion, a Reserve unit in Columbus, Ohio, subordinate to the 300^th Military Police (MP) Command, itself subordinate to 88^th Regional Support Command (RSC) with headquarters at Fort Snelling, Minnesota.

On 31 May 1998 the applicant was “flagged.”

On 5 October 1998 a military personnel specialist of the 300^th Military Police Command, indicated that the applicant had been counseled on 26 September 1998 by two officers from the 9^th Legal Support Organization, and informed him that he was authorized to continue utilizing their services for advice and counsel on the involuntary separation action initiated by the 300^th MP Command.

A copy of the first page of a 21 November 1998 memorandum from the 300^th MP Command to the applicant shows that action was initiated to separate him for misconduct – commission of a serious offense under the provisions of Army Regulation 135-178, paragraph 7-11c. The reason for the action was that an investigation found that he sexually harassed, engaged in an improper relationship, and sexually assaulted, a junior soldier. The memorandum indicated that the commander was recommending that the applicant receive an other than honorable conditions discharge. Only the first page of the memorandum is available.

A copy of the first page of a memorandum [in this instance addressed to the commander of the 300^th MP Command], provides a preprinted document whereby a Reserve soldier can respond to a notification action. That preprinted document informs the applicant of the basis for the action, his rights, the effects of any action in waiving his rights, and various options available to him. The applicant submitted only the first page of that document with his request.

A checklist for misconduct indicates that certain notification actions were completed. That checklist indicates “NA” in the block in response to the question, “Was Affidavit of Service by Mail completed IAW AR 135-178, Figure 2-4. (TAB H).”

A copy of a 21 January 1999 300^th MP Command memorandum to the commander of the 88^th RSC shows that the 300^th commander recommended that the applicant be separated from the Army Reserve and given an other than honorable conditions discharge.

An 11 February 1999 staffing paper shows that a recommendation was made to the 88^th RSC commander that the applicant receive an other than honorable condition discharge. That paper indicated that the applicant received the notification memorandum and failed to respond. On 16 February 1999 the Deputy Staff Judge Advocate of the 88^th RSC stated that the action was legally sufficient, and that the applicant had waived his right to a board by not responding to the notification. He indicated that the applicant was alleged to have committed misconduct involving sexual harassment, fraternization, and sexual assault involving a subordinate female soldier. He concurred with the recommendation to discharge the applicant with an under other than honorable conditions discharge.

Orders published by the 88^th RSC show that the applicant was reduced to private and discharged from the Army Reserve under other than honorable conditions, both effective on 25 March 1999.

In an undated memorandum the applicant requested assistance from a Member of Congress, indicating that he did not know why he was discharged without just cause. He provided a copy of his discharge orders and his pay records showing his pay grade as E-7, among other documents. He stated that he had over 20 years of service.

On 29 July 1999 the Army Reserve Command informed a Member of Congress (MC) that based on the results of an investigation, it was determined that the applicant had sexually harassed a junior soldier, engaged in an improper relationship with a junior soldier, and sexually assaulted a junior soldier, all violations governed under the UCMJ. Consequently, action was initiated to process him for separation from the Army Reserve. That command went on to provide the MC with information concerning the regulatory guidance concerning an involuntary separation action, to include notification to the applicant by certified mail, the right to legal counsel, the right to submit information in his own behalf, and the right to request his case to be heard by a board of officers. The MC was informed that failure to respond within 30 days to the notification of involuntary separation action constituted a waiver of a soldier’s rights, and that action is then taken to separate the soldier without a board hearing.

The MC was further informed that the applicant’s command attempted to notify him, via certified mail, on 6 October and 14 December 1998 of the proposed separation action, and that the post office returned both letters to the applicant’s unit as unclaimed. Consequently, the separation action was forwarded through command channels for a legal review and appropriate action. The action was determined to be legally sufficient, the applicant was reduced to private and discharged under other than honorable conditions effective on 25 March 1999; later amended to 29 March 1999, so the finance office would not recoup the pay the applicant received for his March 1999 drill.

She was further informed that the applicant’s command was only able to document 16 qualifying years of service for retired pay for the applicant, and that a representative from the 88^th RSC had attempted to contact the applicant to verify his service; however, the applicant did not return the calls. She was also informed that the applicant’s retirement point account, maintained by the Army Reserve Personnel Command in St. Louis, reflected that he had four years of service that did not qualify for retirement purposes.

In a 14 August 2000 statement, a Judge Advocate General’s Corps officer stated that he consulted with the applicant on or about 26 September 1998, and that the applicant’s command was aware that he had been consulted. He stated that the applicant later contacted him disclosing that he had been involuntarily separated without his knowledge. He stated that he [the officer] did not know that separation action had been formally initiated, that the applicant had indicated that he did not receive notice and in fact had attended drill sessions during the time period. He stated that the applicant believed the lack of notice was intentional, and was intended to deprive him of his right to an administrative separation board. The officer stated that at no time did the applicant’s command contact him or his other counsel (a first lieutenant) concerning the applicant. He stated that the applicant should have received an administrative separation board.

In a 30 August 2000 letter, the Office of the Chief of Legislative Liaison provided the same MC referred to above essentially the same information contained in the 29 July 1999 letter to her [the MC] from the Army Reserve Command. The MC informed her that the applicant could apply to this Board or the Army Discharge Review Board for relief.

A document from the Court of Common Pleas of Franklin Count, Ohio Criminal Division, certified on 26 October 2000, indicates that the court found no criminal proceedings pending against the applicant, and that the sealing of the record of the applicant’s (dismissal/finding of not guilty/no bill), NOLLE PROS/NOLLE PROS, was consistent with the public interest. The court ordered that all official records pertaining to the applicant’s dismissal/finding not guilty/no bill in two cases, be sealed and all index references deleted.

On 8 November 2000, in response to a MC, the Army Reserve Command stated that an investigation was completed on 17 August 1998 and found legally sufficient by the Staff Judge Advocate of the 88^th RSC. The MC was informed that the applicant could request a copy of the investigation under the Freedom of Information Act.

Army Regulation 135-178 governs the separation of enlisted personnel from the Army Reserve (USAR). Paragraph 7-11 of that regulation states, in effect, that a soldier is subject to discharge for misconduct for commission of a serious offenses if a punitive discharge would be authorized for the same or a closely related offense under the MCM and the specific circumstances of the offense warrant separation. Paragraph 7-11.1 states that administrative board proceedings will be used to determine whether a soldier should be separated for misconduct.
Paragraph 7-2 states that the service of a soldier discharged for misconduct will normally be characterized as under other than honorable conditions. If warranted by the soldier’s overall record, a characterization of service of under honorable conditions may be furnished.

Chapter 2 of that regulation provides for notification procedures when action is being taken to separate a soldier for misconduct. Those procedures include advising a soldier of his right to consult with consulting counsel, to submit statements in his own behalf, and to obtain copies of documents that will be sent to the separation authority supporting the proposed separation. He will be advised that he has the right to a hearing before an administrative separation board if he has had 6 or more years of total military service, or if being considered for discharge under other than honorable conditions. The soldier will be provided a reasonable period of time (not less than 30 calendar days) to act on the notice. If notice by mail is authorized and the soldier fails to acknowledge receipt or submit a timely reply, that fact will constitute a waiver of rights.

Upon receipt of the recommended action, the separation authority will determine whether separation is warranted. He may direct retention, direct separation for a specific reasons, or suspend separation.

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. Notwithstanding the applicant’s contentions and the statement of his military counsel, it appears from the information provided by the applicant, that he was notified of the pending involuntary separation action, as indicated by the 11 February 1999 staffing paper to the 88^th RSC, and the statement by the 88^th RSC Staff Judge Advocate that the separation action was legally sufficient – that the applicant waived his right to a board by not responding to the notification.

2. The Board notes that in the checklist for misconduct, “NA” was entered in answer to the question concerning affidavit of service by mail, apparently indicating that service by mail was not applicable. While the applicant contends that this indicates he was not given proper notice, it may also indicate that he was personally served with the separation action by the command. According to the applicant’s statements, he regularly attended drill at that time. Because the records currently available to the Board are so fragmentary, it is impossible to determine whether this occurred. Nonetheless, the applicant's allegation regarding violation of rights is unsupported by the evidence of record

3. Therefore, and taking into consideration the absence of the applicant’s official military personnel file, the evidence indicates that the action taken to separate the applicant from the Army Reserve for misconduct was proper, and absent evidence to the contrary, was in accordance with regulatory procedures. His discharge under other than honorable conditions was appropriate considering the nature of the offenses indicated in the documents that he provides. While the Board has taken cognizance of the applicant’s military service, to include his service in Vietnam, his awards, schools, and evaluation reports, none of these factors, either individually or in sum, warrant the relief requested.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 that 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

__JNS __SVW__ __MHM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071126
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021119
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.	110.00
2.
3.
4.
5.
6.