RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	 27 November 2007
	DOCKET NUMBER:  AR20070003588 


	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.


x	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.  In the applicant's request, which was submitted through his Member of Congress (MOC), he requests, in effect, that his general, under honorable conditions, discharge be upgraded to honorable, that he be given his retirement, and that his pay and allowances for retirement be activated.

2.  The applicant states, in effect, in a statement attached to his DD Form 149, Application for Correction of Military Record, that he believes the record to be in error since:  (a) he was not allowed to view all papers and charges brought against him.  (b) He states he went to the JAG (Judge Advocate General's) office on Fort Campbell and the attorney told him, "Take the discharge or go to Leavenworth."  This, he says, is the only legal advice he received.  (c) He feels he was not guilty of adultery because the woman he was seeing stated she was separated from her husband at the time anything intimate happened between them.  (d) He tried to explain to the rear detachment commander that the woman had told him she was separated from her husband who at the time was seeing another woman and was living with her just outside the main entrance to Fort Campbell.  (e) The chain of command refused to listen to his statements.  (f) He also believes he was wrongfully discharged because former President Clinton was not impeached at the time of his affair while serving as the President and Commander-in-Chief of our military.  He still collects his pay and benefits so, "why don't I?"  He summarizes by stating/asking, "Per the Constitution of the United States, All men are equal.  If I am guilty of adultery, and the former President is, why does he get his benefits and I don’t get mine?"

3.  The applicant's MOC, in his letter of transmittal, asks the Board to please investigate his constituent's claim, within the existing rules, regulations and ethical guidelines, and to provide him with a final decision.

4.  In support of his request, the applicant provides a self-authored addendum to his DD Form 149 and a copy of his final decree of divorce.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The record shows the applicant enlisted in the Army National Guard on 4 May 1973.  He was ordered to active duty for training (ADT) on 12 October 1973 for the purpose of undergoing basic combat and advanced individual training.  He was release from ADT and was returned to his Army National Guard unit.  The applicant enlisted in and served in the Regular Army for the period 3 February 1975 through 2 February 1978.  He was honorably released from the Regular Army and was transferred to the US Army Reserve (USAR).  On 18 May 1978, he enlisted in the USAR Delayed Enlistment / Entry Program and on 25 July 1978, he reenlisted in the Regular Army.  The applicant continued to serve through a series of reenlistments until 21 December 1990 when he was discharged in the rank and pay grade, Sergeant First Class, E-7, with a general, under honorable conditions, discharge, under the provisions of Army Regulation (AR) 635-200, Chapter 14, Paragraph 14-12B, for misconduct, a pattern of misconduct.

3.  On 15 October 1990, another Soldier who was deployed wrote to his mother and thanked her for having informed him about an affair his wife was having with the applicant.  On the same date, the Soldier wrote a letter to the Commander, 101st Airborne Division (Rear), and reported the affair to him and asked for his assistance in this personal matter out of concern for his children.  The Soldier advised the commander he and his wife were in the process of getting a divorce but it would not be final until after he returned to the States from his deployment overseas.

4.  The applicant submitted a copy of his final decree of divorce.  The applicant and his former spouse had entered into a marital dissolution agreement on 23 August 1990.  The final decree of divorce was entered in the Chancery Court for Montgomery County, Tennessee, on 23 October 1990.

5.  A copy of a complaint for absolute divorce which was filed by the spouse of the other NCO was on file in the applicant's service personnel records.  The complaint for absolute divorce was filed by the other Soldier's spouse on 4 August 1990 and was acknowledged by the other noncommissioned officer's signature on 29 August 1990.  The basis for the complaint was irreconcilable differences between the parties.

6.  On 1 November 1990, the applicant was questioned by his unit commander about his personal contact with another noncommissioned officer's (NCO's) spouse. The unit commander stated the 101st Airborne Division (Rear) Commander had received a letter from a deployed Soldier, dated 15 October 1990, in which he [the applicant] had been accused of having an affair with the Soldier's spouse.  The other NCO further stated the applicant and his spouse were living together.  In Item 8 (Date and Circumstances) and Item 9 (Date and Summary of Counseling), of the DA Form 4856, General Counseling, that was prepared documenting the counseling, a statement appears that the applicant had admitted, in the presence of two witnesses, to living with the other NCO's spouse.  The unit commander notified him he was in violation of Article 134 (Adultery), of the Uniform Code of Military Justice (UCMJ), and gave him a direct order to move out of the house.

7.  On 7 December 1990, the applicant waived both a mental status evaluation and a medical examination.

8.  On 12 December 1990, the unit first sergeant submitted a DA Form 2823, Sworn Statement, in which he stated that on 1 November 1990, both he and the Division (Rear) command sergeant major, had witnessed the applicant being counseled and heard him say, "I'm living with her [the spouse of the deployed Soldier] so I guess I'm guilty."

9.  The evidence of record shows that on 14 December 1990, his unit commander notified the applicant that he was initiating action to separate him for a pattern of misconduct – conduct unbecoming of a NCO (adultery), under the provision of Army Regulation (AR) 635-200, Chapter 14, Paragraph 14-12b.  The applicant acknowledged the letter of notification on the same date.

10.  On 17 December 1990, the applicant was provided legal counsel by a Judge Advocate General's Corps Captain.  He was advised of the contemplated separation action and its effects upon him, the rights which were available to him and the effects of a waiver of his rights.  It is noted the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or description of separation of no less than under honorable conditions – otherwise referred to as a general discharge.  The applicant also stated he understood he would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge.

11.  On 17 December 1990, the applicant submitted a statement in his own behalf.  In his statement, the applicant submitted matters for consideration by the commander designed to exonerate him of charges the other NCO had caught him with his wife.  He added that as far as the divorce actions were concerned [his and the other NCO's wife's], neither was due to their involvement nor had any intimate relation occurred before both were legally separated.

12.  On an unknown date, after 17 December 1990, the applicant's unit commander recommended that he be discharged from the Army under the provisions of AR 635-200, Chapter 14, under the provision of Army Regulation (AR) 635-200, Chapter 14, Paragraph 14-12b for a pattern of misconduct – conduct unbecoming of a NCO (adultery).  Records of counseling given and acknowledged by the applicant were enclosed.  In the commander's recommendation, he stated the applicant had admitted guilt.  In doing so, he had lost credibility within the unit and the division.  In his recommendation of the applicant's discharge, he further requested waiver of the requirement for rehabilitative transfer since, he stated, it would not produce a quality Soldier.  The applicant had, the commander stated, moved out of the other NCO's home and into the billets.

13.  On an unknown date, after 17 December 1990, the Commander, 101st Airborne Division (Rear), approved the recommendation for the applicant's discharge under the provisions of AR 635-200, Chapter 14, for patterns of misconduct and directed that he be discharged with a general, under honorable conditions, discharge.

14.  The applicant was discharged with a general, under honorable conditions discharge, in the rank of Sergeant First Class, on 21 December 1990, under the provisions of AR 635-200, Chapter 14.  On the date of his discharge, the applicant had completed a total of 15 years, 9 months and 1 day active military service.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

16.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

17.  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.

DISCUSSION AND CONCLUSIONS:

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.  On 15 October 1990, another Soldier, who was deployed overseas, became aware his spouse was having an affair with the applicant.  Although dates were not included in the letter which made him aware of the affair, mail processing and transit time must be recognized and included in the timeline.  This indicates the affair was in progress before the Soldier became aware of the affair.

3.  On 15 October 1990, the Soldier whose spouse was having the affair with the applicant wrote a letter to the Commander, 101st Airborne Division (Rear).  He reported the affair to him and asked for his assistance in confirming the affair's existence and his assistance in ensuring his children were not further exposed to the adulterous behavior.

4.  In this same letter, the Soldier advised the commander he and his wife were in the process of getting a divorce but, it would not be final until after he returned to the States.  The indication is that the Soldier's spouse was still a married woman.

5.  The evidence shows the applicant's divorce did not become final until 23 October 1990.  At the time he was having the affair, he was a married man and the woman he was having the affair with was a married woman; therefore, the correct charge he was involved in was misconduct (adultery).

6.  The evidence shows the applicant was provided legal counseling and voluntarily waived his right to appear before an administrative separation board.  Before receiving this legal counseling, he had admitted before two senior NCOs, a first sergeant and a command sergeant major that he was living with the woman and therefore, he must be guilty.

7.  There is no evidence the applicant was "charged" as he asserts or that his legal counsel told him to "take the discharge or go to Leavenworth."  All the evidence shows he was notified and he was fully aware he was being considered for discharge from the Army and the reasons therefore and, he could appear before an administrative separation board.  However, the evidence shows the applicant voluntarily waived his rights to appear before such a board in favor or a discharge characterized as no less than general, under honorable conditions.

8.  There is no evidence the applicant's chain of command would not listen to him.  When presented with the evidence of his affair with the other Soldier's spouse, he admitted, in the presence of two senior NCOs, he was guilty.

9.  The evidence of record shows that on an unknown date, after 17 December 1990, the Commander, 101st Airborne Division (Rear), approved the recommendation for the applicant's discharge, under the provisions of AR 635-200, Chapter 14, for patterns of misconduct, and directed that he be discharged with a general, under honorable conditions, discharge.

10.  The evidence shows that on the date the applicant was discharged, 21 December 1990, he had not completed sufficient service to be entitled to retirement and/or retirement pay and allowances.  He is therefore not entitled to now be retired and to have any pay and allowances for retirement activated.

11.  History shows that President Clinton served as the President and as the Commander-in-Chief of military forces for the full duration for which he was elected.  While he may have faced impeachment, he was not removed from his office and therefore continued to fulfill all his obligations to the country and to the Armed Forces.  As such, he is entitled to any pay and benefits he earned for this service to the country and to the Armed Forces.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_  __x___  __x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____x______
          CHAIRPERSON




INDEX

CASE ID
AR20070003588
SUFFIX

RECON

DATE BOARDED
20071127
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19901221
DISCHARGE AUTHORITY
AR 635-200, Chapter 14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
144.0135
3.
144.6000
4.

5.

6.