BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110008562 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous requests for an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and restoration of his rank/pay grade to staff sergeant (SSG)/E-6.

2.  The applicant defers to counsel.

3.  The applicant provides an appeal packet rendered by his civilian counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous requests that his UOTHC discharge be upgraded to an honorable discharge and restoration of his rank/pay grade to SSG/E-6.

2.  Counsel states the applicant was discharged from the Army in January 1987 after requesting a discharge in lieu of trial by court-martial with a character of service of UOTHC .  The applicant only accepted the discharge because he was imminently facing court-martial charges for assault, sodomy, indecent act(s), adultery, and neglect.  Less than 9 months after he accepted the discharge in lieu of trial by court-martial, his daughter was returned to his custody by the Newport News, VA, Juvenile and Domestic Relations District Court.  Had the charges been substantiated, Child Protective Services – and more importantly the court – would not have returned his child to his care in light of the egregious allegations.  It would be an injustice to continue to stigmatize the applicant with a UOTHC character of service in light of the fact that his daughter was ultimately returned to his custody shortly after his discharge.

3.  Counsel provides:

* a seven-page letter of appeal
* exhibit A – the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* exhibit B – a letter from the applicant's former civilian defense counsel
* exhibit C – Action of the Convening Authority
* exhibit D – a Petition and Court Order from to the Commonwealth of Virginia – Newport News Juvenile and Domestic Relations District Court
* exhibit E – a letter from the Commonwealth of Virginia – Newport News Juvenile and Domestic Relations District Court

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090014724 on 6 April 2010.

2.  Counsel provides new evidence in the form of a letter from the applicant's defense counsel and a Petition and Court Order from the Commonwealth of Virginia Newport News Juvenile and Domestic Relations District Court which were not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.  Additionally, a waiver was granted by the Director of the ABCMR to allow the applicant's case to be reconsidered beyond the 12-month window mandated by policy.

3.  The applicant's record shows he enlisted in the Regular Army on 9 August 1978 and served continuously through two reenlistment periods.

4.  U.S. Army Transportation Center, Fort Eustis, VA, Orders 101-067, dated 23 May 1985, promoted the applicant to the rank/grade of specialist six (SP6)/
E-6 effective 23 May 1985 with a date of rank of 1 April 1985.  This Board subsequently corrected his records to show he was promoted to E-6 effective 17 May 1985, the date on which he reenlisted or extended his term of service to meet the service-remaining requirement for promotion.

5.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains a document entitled, "Action of the Convening Authority," rendered by the Commanding General (CG) of the U.S. Army Transportation Center and Fort Eustis, dated 5 December 1986.  After personally considering the evidence appended to the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, the CG directed his reduction to the lowest enlisted grade and discharge for the good of the service with a UOTHC characterization.

6.  U.S. Army Transportation Center, Fort Eustis, Orders 249-11, dated 30 December 1986, show the applicant was reduced from the rank/grade of SSG/E-6 to private (PV1)/E-1 effective 5 December 1986.  These orders also show he was to be discharged on 5 January 1987.

7.  His DD Form 214 shows he was discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as "other than honorable conditions."  He completed a total of 8 years, 4 months, and 27 days of creditable active military service.

8.  On 23 January 1998, the President of the Army Discharge Review Board (ADRB) informed the applicant that the ADRB reviewed his case and determined he was properly and equitably discharged.  As a result, his request for a change in the character and/or reason for his discharge was denied.

9.  Counsel provides a seven-page letter of appeal wherein he provides the following observations and contentions:

	a.  While enlisted, the applicant was married and later separated from his wife.  They decided the applicant would have custody of their two children.

	b.  In or around June 1986, the applicant noticed a discharge in his 2-year old daughter's underwear.  As a concerned parent, he asked the babysitter to closely monitor his daughter.  Although the babysitter never reported anything to the applicant, his daughter continued to complain of pain when going to the bathroom and was subsequently taken to MacDonald Army Hospital at Fort Eustis to be examined by a physician.

	c.  On 25 June 1986 after conducting a series of tests, the physician discovered the applicant's daughter had contracted gonorrhea.  Coincidentally, the applicant had recently contracted gonorrhea as well.  It was based on this coincidence, and without any corroboration, that the hospital called Child Protective Services who then removed both children from the applicant's custody. 
Child Protective Services investigated the claim, including a videotaped interview of the applicant's daughter.  During this interview the daughter indicated that another man named "J_____" was responsible for touching her; however, this video interview was ultimately lost.

	d.  Court-martial charges were preferred against the applicant at Fort Eustis; however, no criminal charges were ever raised in the local courts.  Although the applicant vehemently denied the charges, he realized the magnitude of the situation and retained local civilian counsel.

	e.  The applicant submitted a request to be discharged in lieu of trial by court-martial rather than risk receiving the maximum punishment of a dishonorable discharge, up to 20 years in prison, and possibly being registered as a sex offender if convicted.  His request was approved and he was reduced to the lowest enlisted grade and separated from the Army with an other than honorable conditions character of service.

	f.  Following his discharge, the applicant fought to regain custody of his children.

	g.  The applicant attempted to obtain copies of his records from the Newport News Juvenile and Domestic Relations District Court, but he has been told on numerous occasions that the Newport News Juvenile and Domestic Relations District Court does not have a record of any charges that may have come about prior to 1988.

	h.  Only after obtaining legal counsel was the applicant able to obtain records from the Newport News Juvenile and Domestic Relations District Court.  These records show that after 9 months the Newport News Juvenile and Domestic Relations District Court decided the applicant did not pose a risk to his daughter and awarded custody of her to him based upon a recommendation of Child Protective Services.  Clearly, Child Protective Services would not have returned the daughter to the applicant's custody if any of the charges against him had been corroborated.

	i.  It is clear that the Newport News Juvenile and Domestic Relations District Court found insufficient evidence to show the applicant neglected his child.  Had this information been available at the time the applicant accepted the discharge, he would not have accepted the discharge in lieu of trial by court-martial.

	j.  In determining whether a resignation is voluntary, the decision maker must "examine the surrounding circumstances to test the ability of the employee to exercise free choice" (Scharf versus the Department of the Air Force, 710 F.2d 1572, 1274 (Federal Circular 1983)).  A three-part test is used for determining whether coercion or duress renders an apparently voluntary resignation or retirement involuntary:  (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party (Middleton versus the Department of Defense, 185 F.3d 1374, 1379 (Federal Circular 1999)).  The most probative evidence of involuntariness will usually be evidence in which there is a relatively short period of time between the alleged coercive acts and the retirement (Terban versus the Department of Energy, 216 F.3d 1021, 1024 (Federal Circular 2000)).

	k.  The applicant's resignation was involuntary as he was forced to accept a discharge UOTHC as opposed to facing the excessive charges or allegations against him.  He had already incurred substantial legal fees in retaining a local civilian attorney and was unable to afford civilian representation at the court-martial after exhausting all his resources.  Furthermore, had the exonerating video tape not been lost by Child Protective Services, the applicant may have had the evidence necessary to defend himself at the court-martial.

	l.  Prior to his discharge, the applicant served honorably for nearly 8 years and earned numerous awards and decorations.

10.  Counsel provides:

	a.  Exhibit B, a letter from the applicant's former civilian defense counsel, dated 14 July 1995, shows the applicant's former defense counsel essentially stated his last contact with the applicant was in approximately 1987 or 1988, so he could not be precise in his statement because he had no case file and was relying strictly on his memory of the circumstances surrounding the case.  The applicant asked him for representation on criminal charges pending at Fort Eustis, VA.  The applicant was specifically accused of anally and orally sodomizing his 3-year old daughter following the discovery by a physician that the daughter had gonorrhea anally, orally, and vaginally.  The applicant and his wife were separated at the time.  During the separation, the applicant had relations with a woman who was infected with gonorrhea and he contracted the disease from her.  An acquaintance of the applicant's named "J_____" also had relations with the same woman.  He attempted to find out if "J_____" had ever received any treatment for a venereal disease but was unable to discover any information which would help him.  He recalls that the child was specifically interviewed by a representative of Newport News Social Services and during that interview the child indicated that a person name "J____" had done some things to her that could have resulted in her acquiring the venereal disease.  However, when he sought to obtain a copy of the tape and view it, believing it may help the applicant in defending the military charges that were then pending, he was informed that the tape had been reused and was no longer available.  He attended an Article 32 investigation on the applicant's behalf at Fort Eustis and they were successful in that the decision was made not to go forward and prosecute the applicant on criminal charges.  However, separate administrative actions were begun and he believed the applicant was administratively separated from the service.  The applicant vehemently denied any wrongdoing with his daughter and provided consistent and appropriate explanations for how his daughter may have contracted the venereal disease.  In some ways, he feels the applicant was a victim of the circumstances that existed.

	b.  Exhibit D, a petition and court order from to the Commonwealth of Virginia Newport News Juvenile and Domestic Relations District Court, shows temporary custody of the applicant's daughter was given to the Newport News Division of Social Services on 7 July 1986 pending a hearing.  On 21 January 1987, the Newport News Department of Social Services retained custody and the applicant was ordered to participate in psychological counseling and family counseling.  On 29 July 1987, custody was given to Newport News Department of Social Services.  On 17 September 1987, the court ordered the City of Newport News to take immediate steps to return the custody of the applicant's daughter to him and his wife.  However, the court order further stipulated that legal custody of the child would remain with the Newport News Department of Social Services for an additional period of 6 months during which custody would be supervised and the applicant would continue to participate in parenting and/or counseling programs as may be required during the 6-month period.

	c.  Exhibit E, a letter addressed to the applicant from the Chief Deputy Clerk of the Common Wealth of Virginia Newport News Juvenile and Domestic Relations District Court, dated 14 January 2009, reads as follows:  "Please be advised that this court does not have record of any charges that may have come about prior to 1988, which is the time that this court began with the use of the computer system.  Furthermore, there is no record regarding any charges involving you in this court."

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at the time the applicant was discharged.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, a general discharge is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

14.  Paragraph 10-15 of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states that when the separation authority determines that a Soldier is to be discharged from the service UOTHC, the Soldier will be reduced to the lowest enlisted grade.  Further board action is not required for this reduction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and his counsel's contention that his UOTHC discharge should be upgraded to an honorable discharge and that his rank/grade should be restored to SSG/E-6 was carefully considered and determined to be without merit.

2.  His record is void of any evidence and he has not provided any evidence showing the applicant was coerced into requesting an administrative discharge in lieu of trial by court-martial or that he ever requested assistance from his chain of command or sought military counsel (free of charge) which was subsequently denied.

3.  The applicant's counsel attests that the applicant was charged with and facing trial by court-martial for the commission of assault, sodomy, indecent act(s), adultery, and/or neglect.  Although his record is void of the specific facts and circumstances surrounding his discharge, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the separation authority appropriately directed the issuance of a discharge UOTHC based on his overall record of service.  Therefore, the evidence is not sufficient to support upgrading the applicant's discharge to honorable or general under honorable conditions.

4.  The fact that the video recording of the applicant's daughter's interview wherein she mentioned inappropriate contact with a man named "J____" was not properly archived is acknowledged.  However, at this point in time, there is no way to determine what else was discovered during the interview or that it would have provided sufficient evidence to exonerate the applicant of the aforementioned charges.

5.  Additionally, the letter from the Newport News Juvenile and Domestic Relations District Court only confirms the court did not have a record of any charges prior to 1988, which is when they starting using the computer system.  The applicant was under military jurisdiction and pending court-martial charges and the absence of civil court proceedings would have had no bearing on the military proceedings.

6.  Finally, the evidence of record does not substantiate the applicant's claim that he was wrongfully discharged as an E-1.  The applicant was promoted to E-6 on 17 May 1985 and was discharged UOTHC in the rank/grade of PV1/E-1 on 5 January 1987.  By regulation, when a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade.  Therefore, he was properly reduced to PV1/E-1 as a result of his discharge UOTHC and his request for his rank/grade to be restored to SSG/E-6 is unfounded.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090014724, dated 6 April 2010.



      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110008562



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ABCMR Record of Proceedings (cont)                                         AR20110008562



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