MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 June 2002
         DOCKET NUMBER: AR2002071745

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Donald P. Hupman, Jr.		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 discharge be upgraded to fully honorable. He states that, based on his previous discharges, he should be able to receive the benefits to which he is entitled. He had an outstanding record for over 12 years. He should not pay for the rest of his life for just one incident in which he made a mistake. He provides no supporting evidence.

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

He enlisted in the Regular Army on 10 August 1984. He was honorably discharged and immediately reenlisted on 13 May 1988, on 13 February 1992, and, for the last time, on 10 October 1995. He was assigned to drill sergeant duties at Aberdeen Proving Ground, MD on 8 April 1994. He was promoted to Sergeant First Class, E-7 on 1 March 1997.

The court-martial charge sheet is not available. The Staff Judge Advocate’s recommendation concerning the applicant’s request for discharge in lieu of court-martial packet indicates that on 15 April 1997 the applicant was charged with violation of a lawful general regulation and adultery (consensual sexual intercourse with apparently two trainees while assigned as a drill sergeant).

On or about 22 May 1997, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf, wherein he apologized for what he had done, acknowledged that he had no one to blame but himself, and requested that he be granted a general discharge under honorable conditions. A letter of support from his counsel provided with his statement noted that the trainees with whom the applicant had sexual relations were not under his control or supervision as they were part of a different company. They voluntarily sought him out to have intercourse with him. He was separated from his wife at the time but he and his wife had since reconciled.

On 18 June 1997, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions.

On 7 July 1997, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with a discharge under other than honorable conditions. He had completed a total of 12 years, 10 months, and 28 days of
creditable active service and had no lost time. His Certificate of Release or Discharge from Active Duty, DD Form 214, item 18 shows that he had three immediate reenlistments for that period.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge under other than honorable conditions is normally considered appropriate.

In pertinent part, Army Regulation 635-200 states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15. An honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The type of discharge and character of service will be determined solely by the military record during the current enlistment or period of service from which the soldier is being separated.

On 26 July 2000, in a records review, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

On 1 April 2002, after a personal appearance hearing, the ADRB upgraded the applicant’s discharge to a general discharge under honorable conditions.

Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, 2002 edition states that honorable and general discharges qualify a veteran for most Department of Veterans Affairs (VA) benefits.

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 the request was made under coercion or duress.

3. Even though regulatory guidance is that the type of discharge and character of service will be determined solely by the military record during the current enlistment or period of service from which the soldier is being separated, in April 2002 the ADRB upgraded the applicant’s discharge under other than honorable conditions to a general discharge under honorable conditions based upon his prior 12 years of service with a good record. Nevertheless, the applicant was a senior noncommissioned officer (and married, albeit separated at the time) in a position of authority (even if not official control or supervision) over two privates who abused his position as a drill sergeant. This Board does not believe that further relief in the form of a fully honorable discharge is warranted or appropriate.

4. The applicant’s prior honorable discharges are noted on his DD Form 214 and VA personnel should be able to interpret this information to mean he had prior fully honorable service. In addition, since the ADRB upgraded his last discharge to general under honorable conditions he should qualify for most VA benefits. He should be aware, however, that the VA grants benefits based upon its own policies and regulations.

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

__CLA_ _ __BJE _ __DPH___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071745
SUFFIX
RECON
DATE BOARDED	2002/06/13
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1007/07/07
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.