MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 April 2003
         DOCKET NUMBER: AR2002079943

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Yolanda Maldonado		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 all records of his general court-martial (GCM) be deleted from his records; that the date of his release from service be changed from 30 April 1997 to 8 November 1997; that he be promoted to corporal (CPL) (E-4), effective 1 July 1997; that his narrative reason for discharge be changed to expiration of term of service (ETS); and, that the entry indicating that the discharge was administratively reissued on 7 February 2001 be deleted from item 18 of his DD Form 214 (Certificate of Release or Discharge from Active Duty)

APPLICANT STATES: In effect, that he was wrongfully accused of a crime and despite being acquitted by a GCM, it was used to support the rationale of giving him a chapter 14 discharge. He states that his new commander did not believe that he was not guilty and improperly used a non-judicial punishment issued over 14 months earlier to discharge him prior to his ETS. He states that the statement indicating that his discharge was administratively reissued on 7 February 2001 has precluded him from becoming a military policeman in all branches of the service. He contends, in effect, that had he not been improperly discharged, he would have continued until his ETS and would have been promoted to CPL. He states that he was not offered a rehabilitative transfer nor properly disqualified from such consideration.

The applicant submits a copy of a Stipulation of Expected Testimony from his Record of Trial to support his contention that the charge for which he was court-martialed was without basis.

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

Incorporated herein by reference are military records which were summarized, in the decisional document prepared to reflect the Board's 30 November 2000 consideration (AR2000040921) of the applicant’s request on related issues.

The applicant had been promoted to corporal prior to his reenlistment in November 1995. He was reduced to private (PVT) (E-2) as a result of a non-judicial punishment (NJP), under Article 15, Uniform Code of Military Justice, dated 31 January 1996. As noted in the previous Board action there is no indication that the applicant was again promoted to PFC during his remaining period of service.

The prior Board found: “A review of the chapter 14 proceedings reflects that it was based solely on the single Article 15 that had been imposed on the applicant 14 months earlier. The chapter packet indicated no infractions in the interim 14 months from the imposition of the Article 15 to the initiation of the discharge proceedings. The discharge packet contained neither explanation for the lengthy delay nor the basis for the commander’s assessment that the applicant did not
warrant a rehabilitation effort. The governing regulation clearly indicates that a chapter 14 discharge is to be imposed against soldiers when rehabilitation is impracticable or is unlikely to succeed. Nothing provided in the applicant’s record or in the chapter 14 proceedings appear to support such an assessment of the applicant. The evidence does support the applicant’s contention that the chapter 14 discharge was improperly used against him. It would therefore be appropriate to change his separation authority, separation code, RE Code and the narrative reason for his discharge.”

The applicant submits a copy of a statement from the physician who performed the assault/rape examination on both the alleged victim and the applicant. The doctor’s statement indicates that she found no evidence of any physical injury to either party. The applicant also submits a personal statement outlining his work history and two post-service performance evaluations as a security guard at Fort Eustis, Virginia. Both of these evaluations rated the applicant as outstanding.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) states, in effect, that the Board is precluded from taking any action that would disturb the finality of a court-martial conviction.

Army Regulation 635-5 provides instructions for completing the DD Form 214. In pertinent part, it states that item 18 (Remarks) is used for entries required by Headquarters Department of the Army for which a separate block is not available and for completing entries that are too long for their blocks. Subsection
2-4h(18)(r) states: “When a DD Form 214 is administratively issued/reissued, enter (on all copies) "DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date)." However, do not make this entry if the appellate authority, Executive Order, or HQDA directive directs otherwise.”

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. While the Board does have the authority to change the sentence or punishment resulting from a court-martial conviction, it does not have the authority to expunge the fact that the court-martial occurred.
2. As noted in the prior Board action, the applicant’s status as a PFC was in question at the time of his discharge. The prior Board determined that it was an injustice to have held up his promotion, based on the court-martial at which he was acquitted. There is no documentation that the applicant was qualified for or recommended for promotion to CPL at the time of his discharge. Therefore, it is not appropriate to promote him to CPL.

3. Inclusion of the reissue statement in item 18 of his DD Form 214 is a required entry. The Board finds that this entry is not prejudicial, because there is no indication of what was changed.

4. Although the previous Board described the manner in which the applicant’s command used chapter 14 to discharge the applicant as improper, that action was technically within the command’s authority. The previous Board granted the applicant relief based on a matter of equity not an error in law.

5. As the previous relief was granted as a matter of equity, there is no technical requirement to void the 30 April 1997 discharge and extend the applicant until his ETS. As the applicant did not complete his term of service, a reason for separation of ETS is not appropriate. The separation authority and narrative reason for separation are correct as denoted on his current DD Form 214.

6. 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.

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.

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

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INDEX

CASE ID	AR2002079943
SUFFIX
RECON
DATE BOARDED	20030415
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	110.02
2.	136.01
3.
4.
5.
6.