RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 January 2007
      DOCKET NUMBER:  AR20060007815


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Ms. Ernestine I Fields            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable
conditions discharge be upgraded to an honorable or general discharge and
restoration of the rank of sergeant/pay grade E-5.

2.  The applicant states, in effect, that his Administrative Separation
Board was unfair, he was not provided proper counsel at the board, and he
received multiple punishments for the same offense.

     a.  In a letter to the Army Discharge Review Board (ADRB), the
applicant states, in effect, that his goal was to be reinstated to active
duty.  He summarizes his military training, service, and the awards and
decorations he received.  The applicant states that in March 1994 he began
experiencing serious problems with his marriage and filed for divorce.  He
deployed on an unaccompanied overseas tour to Korea in January 1996 and
this delayed the divorce process until he could return to the United
States.  He then received orders for an accompanied tour to Panama.  Two
months into his tour his wife returned to the United States to be with her
boyfriend and the applicant filed for divorce.  About 11 weeks later,
before the divorce was finalized, his wife returned to Panama.  The
applicant states, in effect, that she refused to honor their agreement for
divorce, assaulted him and his baby sitter, and accused him of having
committed adultery with a minor.  The applicant further states, in effect,
that he was ordered to leave his government quarters and move into the
barracks.

     b.  The applicant also states, in effect, that he accepted punishment
under Article 15, Uniform Code of Military Justice (UCMJ), on the advice of
his attorney. Shortly thereafter, he was informed by his commander that he
was being recommended for separation due to misconduct.  The applicant
states, in effect, that he requested an attorney from Fort Bragg, North
Carolina (the same attorney that had advised him to accept the Article 15);
however, 30 hours before his Administrative Separation Board he was
informed that his request for counsel was denied and that the defense
attorney in Panama was his appointed legal representative.  The applicant
adds, in effect, that he spoke at the Administrative Separation Board on
his own behalf, provided board members with documents related to his
distinguished military service and accomplishments over the previous 8
years while serving as a staff sergeant, but it seemed as if the board
members refused to listen to him and had already made up their minds.

     c.  The applicant concludes by stating, in effect, he was subsequently
demoted from sergeant/pay grade E-5 to private/pay grade E-1 and issued
orders to report to the U.S. Army Separation Activity at Fort Jackson,
South Carolina, where he was issued an under other than honorable
conditions discharge.  The applicant, in effect, maintains that he was
punished over and over again for the same offense, seeks upgrade of his
discharge, and reinstatement of his previous rank (i.e., sergeant/pay grade
E-5).

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), with an effective date of 22 June
1999; DD Form 293 (Application for the Review of Discharge or Dismissal
from the Armed Forces of the United States), dated 24 February 2003; a self-
authored letter to the ADRB, dated 24 February 2003; and DA Form 2627
(Record of Proceedings Under Article 15, UCMJ), dated 5 January 1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 June 1999, the date of his discharge.  The application
submitted in this case is dated 22 May 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military service records show that he enlisted in the
U.S. Army Reserve on 5 February 1986 and entered active duty in the Regular
Army (RA) for a period of 3 years on 20 March 1986.  He completed basic
combat training and advanced individual training and was awarded military
occupational specialty (MOS) 76X (Subsistence Supply Specialist).  The
applicant's military service records show that he reenlisted in the RA for
a period of 4 years on 16 December 1988; reclassified into MOS 67T (UH-60
Helicopter Repairman); reenlisted for a period of 4 years on 4 June 1992;
reenlisted again for a period of 6 years on
19 October 1995; and served continuously until his discharge on 22 June
1999.  The highest grade he attained was staff sergeant/pay grade E-6.

4.  The applicant’s military service records show that he served in
Southwest Asia in support of Operation Desert Shield/Storm from 12
September 1990 through 10 April 1991.

5.  The applicant's military service records document no acts of valor,
significant achievement, or service warranting special recognition.

6.  The applicant's DD Form 214 shows he was discharged on 22 June 1999, in
the rank of private/pay grade E-1, under the provisions of paragraph 14-12c
of Army Regulation 635-200.  Item 18 (Remarks) of the DD Form 214 shows, in
pertinent part, that the applicant had continuous honorable active service
from
20 March 1986 through 15 December 1988; from 16 December 1988 through
3 June 1992; and from 4 June 1992 through 18 October 1995.  This document
also shows that, at the time of his discharge, the applicant completed 13
years,
3 months, and 3 days of net active service during this period.

7.  The applicant’s military service records contain a copy of a DA Form
2627 (Record of Proceedings Under Article 15, UCMJ), dated 5 January 1999.
This document shows that non-judicial punishment was imposed by the
battalion commander against the applicant for twice failing to go at the
time prescribed to his appointed place of duty; failing to obey a lawful
order issued by his first sergeant; unlawfully striking his wife in the
facial area with an open hand, pulling her hair, and striking her in the
shoulder with a closed hand; committing the offense of carnal knowledge;
and wrongfully having sexual intercourse with a woman not his wife.  This
document shows that the applicant requested a closed hearing and a person
to speak in his behalf, and that matters in defense, mitigation, and/or
extenuation were presented in person by the applicant to the commander.
Subsequent to the closed hearing and consideration of all matters presented
in defense, mitigation, and/or extenuation, the commander imposed
punishment against the applicant that consisted of reduction to the grade
of E-5, forfeiture of $882.00 for two months, and 45 days extra duty.

8.  The DA Form 2627 also shows that the applicant appealed the action
taken under Article 15, UMCJ, and submitted additional matters to the
appeal authority. On 25 January 1999, the colonel serving as Commander,
Theater Support Brigade, Fort Clayton, Panama, denied the applicant's
appeal.

9.  On 17 March 1999, the unit commander notified the applicant that
separation action was being initiated on him under the provisions of Army
Regulation
635-200, paragraph 14-12c, for commission of a serious offense.  The
reasons for the proposed action were that the applicant received a Field
Grade Article 15 for disobeying a lawful order, carnal knowledge, assault,
and adultery.  The commander advised the applicant that he was recommending
the applicant receive an under other than honorable conditions discharge.

10.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated separation action and its effects, and of the
rights available to him.  The applicant requested consideration of his case
by an Administrative Separation Board and personal appearance before the
board.  The applicant also requested Captain C______ R___ as his military
counsel and also indicated he would obtain civilian counsel at no expense
to the Government.

11.  On 8 April 1999, the unit commander recommended separation of the
applicant from service and indicated further rehabilitative attempts would
not be in the best interest of the Army as they would not produce a quality
Soldier.  The battalion and brigade commanders both recommended approval of
the applicant's separation with an under other than honorable conditions
discharge.

12.  On 26 April 1999, the major general serving as Commander, U.S. Army
South, Fort Clayton, Panama, referred the applicant as a respondent before
an Administrative Separation Board.  The Commanding General, in pertinent
part, directed the Trial Defense Service (TDS), Fort Clayton, Panama,
provide an attorney for the applicant at no expense to the Government.

13.  On 5 May 1999, the applicant was notified to appear before a board of
officers convened under the provisions of Army Regulation 635-200, chapter
14, for the purpose of determining whether he should be discharged before
the expiration of his term of service.  The discharge was recommended
because of the applicant’s misconduct.

14.  On 6 May 1999, the applicant acknowledged receipt of the notification
to appear before the Administrative Separation Board.  On 23 May 1999, the
applicant submitted a request to have a different attorney assigned to his
case to represent him at the Administrative Separation Board.  In his
request the applicant indicated that the TDS, Fort Clayton, Panama, had
"provided outstanding service to me for a[n] Article 15 I received this
past January."  The applicant added, "[i]n this process and all the time
TDS Panama has devoted to me to [date] I feel I have created waves in the
judicial system here and a fresh ear is needed."

15.  On 4 June 1999, a board of officers convened under the provisions of
Army Regulation 635-200, chapter 14, to determine whether the applicant
should be discharged from service.  For the record, the applicant's
appointed counsel, the Senior Defense Counsel of the TDS, Fort Clayton,
Panama, addressed issues out of the presence of the board members regarding
the applicant's request for representation and the reason or non-
availability of his requested counsel
(i.e., the officer was not assigned as a member of that region of the TDS).
 Given the choices of having the Senior Defense Counsel (TDS), civilian
counsel at his own expense or representing himself, the applicant indicated
he would like the services of the Senior Defense Counsel (TDS) as his legal
advisor and that "he [the applicant] will conduct most [all] of the
addressing to the panel as well [as] questioning the witnesses.  He will do
the opening and closing statements as well."

16.  The board members subsequently reentered the courtroom and the
Administrative Separation Board commenced.  After conducting the hearing
and considering the evidence presented, the board found that the applicant
committed an act of serious misconduct and recommended that he be separated
from service with an Under Other Than Honorable Conditions Discharge.

17.  On 11 June 1999, the separation authority reviewed the separation
action, along with the summary board proceedings, and the recommendation
was approved.  The separation authority directed that the applicant be
separated under the provisions of Army Regulation 635-200, paragraph 14-
12c, for commission of a serious offense; directed that the applicant be
reduced to the lowest enlisted grade, private/E-1; directed that the
applicant’s service be characterized as under other than honorable
conditions; and that the applicant not be transferred to the Individual
Ready Reserve.  Accordingly, the applicant was discharged on 22 June 1999.

18.  The DD Form 214 (Certificate of Release or Discharge from Active Duty)
issued to the applicant on the date of his separation confirms that the
applicant was discharged under other than honorable conditions.  This
document further confirms that the authority for the applicant’s separation
was Army Regulation 635-200, paragraph 14-12c, and that the narrative
reason for his separation was misconduct.

19.  On 24 February 2003, the applicant submitted a DD Form 293
(Application for the Review of Discharge or Dismissal from the Armed Forces
of the United States) to the ADRB.  In his application, the applicant
identified the same issues as he identifies in this application.  On 2
April 2004, the ADRB determined that the applicant’s discharge was proper
and equitable and it voted to deny the applicant’s request for an upgrade
of his discharge.

20.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.  Paragraph 3-16d (4) provides
that before finding a Soldier guilty, the commander must be convinced
beyond a reasonable doubt that the Soldier committed the offense.

21.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
sets forth the policy for the separation of enlisted personnel.  Paragraph
1-15 (Guidelines on Separations) provides, in pertinent part, when deciding
retention or separation in a case, the commander will consider the
Soldier's entire military record, including past contributions to the Army,
assignment, awards and decorations, evaluation ratings, and letters of
commendation; memoranda of reprimand or admonition, counseling records,
records of non-judicial punishment, records of conviction by court-martial
and records of involvement with civilian authorities; and any other matter
deemed relevant by the board or the separation authority.

22.  Army Regulation 635-200, Chapter 14, establishes policy and prescribes
procedures for separating members because of misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, conviction 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.

23.  Army Regulation 635-200, paragraph 3-7a, 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, 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.

24.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is
satisfactory, but not sufficiently meritorious to warrant an honorable
discharge.  A characterization of under honorable conditions may be issued
only when the reason for the Soldier's separation specifically allows such
characterization.

25.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3-year time limit on filing to the ABCMR should commence on the
date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable
conditions discharge should be upgraded to an honorable or general
discharge and that his rank of sergeant/pay grade E-5 should be restored.
The applicant further contends, in effect, that his Administrative
Separation Board was unfair, he was not provided proper counsel at the
Administrative Separation Board, and he received multiple punishments for
the same offense.

2.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 2 April 2004.

3.  By regulation, before finding a Soldier guilty during Article 15
proceedings, the commander must be convinced beyond a reasonable doubt that
the Soldier committed the offense.  The evidence of record confirms the
applicant waived his right to a trial by court-martial and opted for a
closed hearing.  He requested the opportunity to present matters in
rebuttal at the hearing, and to have someone speak on his behalf.  After
considering the available evidence, the applicant's commander found him
guilty of the alleged misconduct and imposed appropriate punishment.

4.  By regulation, in deciding retention or separation in a case, the
commander will consider the Soldier's entire military record, including in
pertinent part, records of non-judicial punishment and any other matter
deemed relevant by the board or the separation authority.  The evidence of
record further shows that the applicant's military record was considered by
the Board, including the applicant's own testimony concerning his military
service record.  Therefore, the applicant provides insufficient evidence to
show that the Administrative Separation Board was unfair.

5.  The evidence of record fails to show that the applicant was punished
multiple times for the same offense.  The evidence of record shows that
punishment for the offenses was imposed on the applicant in proceedings
under Article 15, UCMJ.  The evidence of record also shows that the
applicant's separation from the Army was an administrative action (emphasis
added) taken as a result of the applicant's misconduct.  Therefore, the
applicant provides insufficient evidence to show that he received "multiple
severe punishments for the same offense."
6.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the governing regulation, to include
consideration of his case by a board of officers.  All requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.  There is no evidence in the
available records that supports the applicant’s contention that he was not
properly represented during the processing of his separation or at his
Administrative Separation Board. In fact, the evidence of record shows that
the applicant was afforded the opportunity to be represented by the Senior
Defense Counsel (TDS), civilian counsel at his own expense or represent
himself.  The evidence of record further shows that the applicant chose to
represent himself, with the Senior Defense Counsel (TDS) serving as his
legal advisor.  Therefore, the applicant provides insufficient evidence to
show that he appeared as a respondent before the Administrative Separation
Board without being afforded the opportunity to be represented by proper
counsel.

7.  The evidence of record shows that, after reentering the Regular Army on
active duty on 20 March 1986, the applicant's character of service was
honorable during his first enlistment when he completed 2 years, 8 months,
and 26 days active service before he was discharged for immediate
reenlistment.  The evidence of record also shows that his character of
service was honorable during the period of his first reenlistment of 16
December 1988 when he completed
3 years, 5 months, and 18 days active service before he was again
discharged for immediate reenlistment.  The evidence of record further
shows that his character of service was honorable during the period of his
second reenlistment of 4 June 1992 when he completed 3 years, 4 months, and
15 days active service before he was once again discharged for immediate
reenlistment.   Moreover, these three periods of honorable active service
are documented on the applicant's discharge document.  However, these three
periods of honorable active service do not mitigate the applicant's
character of service during the period of his last reenlistment (i.e., from
19 October 1995 through 22 June 1999) when he was reduced to private/pay
grade E-1 and discharged for misconduct.

8.  The evidence of record shows that the applicant’s record of service
(i.e., from 19 October 1995 through 22 June 1999) did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Thus, the applicant is not entitled to an honorable discharge.
Furthermore, this service was not satisfactory.  Thus, the applicant is not
entitled to a general discharge.  Therefore, in view of all of the
foregoing, the applicant’s discharge document accurately reflects his
overall record of service, including his grade at the time of his
separation.

9.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KLW__  ___LWR   ___EIF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                       __Kenneth L. Wright____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007815                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070123                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19990622                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 14, Paragraph 14-12c|
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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