MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 June 2002
         DOCKET NUMBER: AR2002071222

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Roger W. Able		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, a change in the characterization of his discharge from Under Other than Honorable Conditions (UOTHC) to Honorable.

APPLICANT STATES: In effect, that he was court-martialed in Saudi Arabia for sexual harassment but was found not guilty. The day before they departed, his commander gave him a discharge stating that the general had given him the authority to discharge him. He further states that he trusted his commander and all those who were appointed over him. He feels that the government asked him to trust them and he gave them most of his life. He feels that if he is guilty, he will do his time, and if not, reinstate him in the Army. He concludes by stating that he is American. The applicant submitted no documentary evidence in support of his application and his contentions.

EVIDENCE OF RECORD: The applicant's military records show that the applicant enlisted in the US Army Delayed Enlistment Program in November 1977 and entered active duty in the Regular Army on 5 July 1978. On 4 July 1981, the applicant was honorably released from active duty and transferred to the US Army Reserve. He was discharged from the Reserve, and on
30 September 1981, the applicant reenlisted in the Army in the rank of Specialist. He served continuously through two other reenlistments and discharges as follows: 30 September 1981 through 13 September 1984 and 14 September 1984 through 15 February 1990. His last reenlistment, before being discharged at his request in lieu of court martial under other than honorable conditions, was effected on 16 February 1990 in the rank and pay grade of Staff Sergeant, E-6.

During his over twelve years active duty service, the applicant received the following awards and decorations: the Army Service Ribbon, the National Defense Service Medal, the Good Conduct Medal (3rd Award), the NCO Professional Development Ribbon-2, the Expert Badge (Rifle M-16), the Marksmanship Badge (Hand Grenade), an Overseas Service Bar, and the Driver and Mechanic Badge.

The evidence of record shows that on 29 March 1991 while he was assigned to the 360^th Transportation Company, 383^rd Quartermaster Battalion, deployed to Saudi Arabia, General court-martial charges were preferred against the applicant. In all, there were four charges and fourteen specifications each of which had sexual overtones and/or were of a violent nature. Among the charges and specifications were: attempted sodomy, sexual harassment, cruelty, attempted assault consummated by battery, indecent assault, and attempted subornation of a witness.

Evidence of record shows that on 7 May 1991 the applicant submitted a request for discharge from the service in lieu of trial by General Court-Martial for multiple

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charges under the provisions of Chapter 10, Army Regulation 635-200. On this same date, the applicant consulted with legal counsel and submitted a statement in his own behalf. Neither the basic application for discharge nor the statement submitted by the applicant is in his file. On an unknown date, the unit commander and the intermediate commander recommended approval of the request. In addition, on an unknown date, the separation authority approved the request and directed that an under other than honorable conditions discharge be issued. On 10 June 1991, the applicant was discharged in compliance with his request.

The applicant applied to the Army Discharge Review Board (ADRB) for review and upgrade of his UOTHC discharge on 25 June 1996. At this time, he offered no issues of propriety or equity to warrant an upgrade of his discharge and the ADRB determined that he had been properly discharged. The Army Discharge Review Board denied his application and notified him of their decision on
4 December 1996.

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, at any time after the charges have been preferred, a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s
service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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. There is no record of the applicant being court-martialed either in Saudi Arabia or in the Continental United States. His contention that he was court-martialed and found not guilty and that his commander gave him a discharge after the general had given him [the commander] the authority have no merit.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ). The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.

3. Even though neither the basic application for discharge nor the statement submitted by the applicant are in his file, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that before requesting discharge.

4. Finally, the Board considered the applicant’s entire record of service. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, it has determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his UOTHC discharge to a general or an honorable discharge.

5. 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

__rvo___ __rwa___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071222
SUFFIX
RECON
DATE BOARDED	20020620
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19910610
DISCHARGE AUTHORITY	AR 635-200, Chap 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.	144.7000
3.	144.0000
4.
5.
6.