PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1.  Character of Discharge:  General, Under Honorable Conditions

2.  Date of discharge (or REFRAD):  980428

3.  Authority for separation:

	a.  Regulation:  Chapter 3, AR 600-8-24

	b.  Reason:  In Lieu of Trial by Court-Martial

4.  Prior review(s):  Records/011121



PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

1.	Service data:                              2.  Awards and decorations:
			                          MSM               AFSM      OSR(3)
a.  Period entered for:  6  Years              AM                SWASMw/2Bss
b.  Entry date:  960410                        JSCM              NCOPDR(30
c.  Age:  30  Years   DOB:  660101             ARCOM(4thAwd)     UNSM     
d.  Educational level:  HS Grad                AAM(11thAwd)      KLM(2)   
e.  Aptitude area score:                       AFEM              ASR
	    GT:  113                               3.  Highest grade achieved:
    f.  Length of Service:                         WO1
          2  Year(s)  0  Month(s)  19  Day(s)                                 
                                                           
                                               4.  Performance evaluations:  
                                                   See OMPF
                                                 

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5.  Periods of unauthorized absence:  NONE
                                                                    
    Status       Inclusive dates                       
	AWOL                                                               

	Mil conf                                                           

	Civil conf                                                         

	Other                                                              


6.  Nonjudicial punishment:  NONE

	Date 	Offense(s)
	


7.  Court-Martial data:  NONE

	a.  SCM:  
		Date   Offense(s)
                     
	
	b.  SPCM:  
		Date   Offense(s)


	c.  GCM:	 
		Date   Offense(s)


8.	Remarks:  NONE


SECTION B - Prior Service Data


Other discharge(s):

	Service	From	To	Type Discharge
	RA	840608	870310	Honorable
	RA	870311	890810	Honorable
	RA	890811	910701	Honorable
	RA	910702	920503	Honorable
	RA	920504	960409	Honorable





PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l.  Facts and Circumstances:

	a.  Evidence of record shows that on 29 January 1998, the applicant was charged with having sexual intercourse and sodomy with an enlisted soldier, not his wife on several occasions.  On 4 February 1998, the applicant voluntarily tendered his resignation from the service under the provisions of Chapter 3, AR 600-8-24, resignation for the good of the Service in lieu of trial by a court-martial.  On 18 March 1998, the applicant’s chain of command forwarded the applicant’s request for resignation for the good of the service to the Deputy Assistant Secretary (Army Review Boards) with a recommendation that he receive an under other than honorable conditions discharge.  The Ad Hoc Review Board recommended that the applicant’s resignation be accepted with issuance of an under other than honorable conditions discharge.  On 31 March 1998, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  On 31 March 1998, the Cdr, PERSCOM, approved the applicant’s discharge and directed he be separated with a general, under honorable conditions discharge.  

	b.  On 28 April 1998, the applicant was discharged.  At the time of discharge, the applicant had completed 2 years, and 19 days of active military service in the period under review and had a total of 13 years, 10 months, and 21 days of active military service.

	c.  The Deputy Assistant Secretary (Army Review Boards) approved the applicant’s request for resignation for the good of the service in lieu of trial by court-martial and directed that he receive an under other than honorable conditions characterization of service.  However, someone in the discharge process erroneously changed his characterization of service to general, under honorable conditions on his DD Form 214 (Block 24).  It is the policy of the Board not to correct/and or change an error made on the applicant’s behalf, which provides him a substantial enhancement of rights.

2.  Legal/Regulatory Basis for Separation Action:  Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 3, Paragraph 3-13 outlines the rules for processing request for resignation for the good of the Service in lieu of trial by a general court-martial.


SECTION B-APPLICANT’S SUBMISSIONS


1.  Issue(s) of propriety and/or equity submitted by applicant or counsel.
    As stated on applicant’s DD Form 293.

2.  Exhibit(s) submitted:

	A-1:  DD Form 293, dated 020906.
	A-2:  Counsel Issues:  NONE
	B-l:  Other Documents: NONE



PART IV - PREHEARING REVIEW (CONTINUED)

SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor      ( ) Legal Advisor



      a.  Medical prehearing comments (if applicable):


      b.  Legal prehearing comments (if applicable):











PART V - SUMMARY OF HEARING

SECTION A-Attendees and exhibits

1.  Review/hearing information:


	a. Type requested:
	   (   ) Records review             ( X ) Hearing

	b. Type Held:
	   (   )Records review              ( X ) Hearing
	                                    (   ) Tender Offer

	c. Review/hearing location and date:  Tampa, FL on 5 November 2002.

	d. Appearance by:
	   Applicant                 ( X ) Yes   (   ) No
	   Counsel                   ( X ) Yes   (   ) No

	e.  Applicant testified:     ( X ) Yes   (   ) No
	
	f.  Counsel presentation:    ( X ) Yes   (   ) No
	
	g.  Witness(es) testified:   ( X ) Yes   (   ) No
	                                                
2.  Exhibit(s) submitted at hearing:  3 documents.

PART VI - ISSUES AND FINDINGS

1.  a.  Applicant's issue(s) of propriety and/or equity:

	    ( X )	Same as those listed on DD Form 293 and Part IV, Section A of this case report and directive.
	    (   )	Revised issue(s) furnished in writing by applicant as follows:
	    (   )	Additional issue(s) identified during review/hearing as follows:

	b.  Request:  ( X ) Recharacterization     ( X ) Change of Reason

2.  Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:

	a.  Propriety:	The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

        (2), (3), (4), (5), and (6)  The issues are rejected.  The Board carefully examined the applicant’s record during the period of service under review and heard his testimony.  There was a full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense.  The Board found no evidence of arbitrary or capricious actions by the command.  The applicant’s contentions relate to procedural matters which should have been raised and adjudicated at the time of his separation from the Army.  Further, the Board noted that the applicant voluntarily requested resignation in lieu of trial by court-martial.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

	b.  Equity:	The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

        (1) and (7)  The issues are rejected.  The record of evidence shows that the applicant voluntarily requested resignation in lieu of trial by court martial for having sexual intercourse and sodomy with an enlisted person not his wife, on various occasions.  Although his misconduct may be considered an isolated incident, his last period of service (e.g., approximately 2 years) was appropriately characterized.  The Board noted that the applicant has five previous periods of honorable service and would not be denied any federal benefits available to veterans.  The Board also noted that the Deputy Assistant Secretary (Army Review Boards) approved the applicant’s request for resignation for the good of the service in lieu of trial by court-martial and directed that he receive an under other than honorable conditions characterization of service.  However, someone in the discharge process erroneously changed his characterization of service to general, under honorable conditions on his DD Form 214.  It is the policy of the Board not to correct/and or change an error made on the applicant’s behalf, which provides him a substantial enhancement of rights.  The Board noted the applicant’s contention that he is on active duty in the Florida Army National Guard (FLARNG) and that since the Army has given him a waiver to reenter, it would be double jeopardy not to restore his prior record.  It is within the discretion of FLARNG to accept the applicant for service; however, the applicant only received a waiver from the Adjutant General of the State of Florida to serve in the FLARNG.  

3.  Response(s) to item(s) not addressed as decisional issue(s):  NONE

PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.	Board conclusion(s):

	The discharge was:

	( X )	Proper.
	(   )	Improper as to characterization.  Change characterization to                                     .
	(   )	Improper as to reason.  Change reason to                         under                      .

	( X )	Equitable.
	(   )	Inequitable as to characterization.  Change characterization to                               .
	(   )	Inequitable as to reason.  Change reason to                       
		under                                 .
	(   )	Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                         .

2.  Voting record:      Change   No Change
	            Reason       0         5  
    Characterization       0         5   

	  The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below.  The request must contain the CASE NO. located in the upper right corner of this document.

                  Department of the Army Review Boards Agency
                  ATTN:  Promulgation Team
                  1941 Jefferson Davis Highway, 2nd Floor
                  Arlington, VA  22202-4508



3.  Minority views:  NONE  

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified	

                          	
Ms. McKim-Spilker                                                        
Case Reviewing Official	

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

NONE

SECTION B - CERTIFICATION

Approval Authority:


SPURGEON A. MOORE
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:




JOHN F. LONG    
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge              	C - Other 
B - Material submitted by applicant

INDEX RECORD:

AR Number:  2002078521                    INDEX NUMBERS:  A9217
Date of Review:  021107                                   A9235
Character of Service:  GD                                 A9221
Date of Discharge:  980428                                A0113
Authority:  AR 600-8-24 C3                         
Reason:  A8000                                            
Results of Board Action/                                  
Vote/Affirmation:  NC 5-0 A                               














PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC  UNCHAR

    1. LTC LONG, JOHN 	Mbr          X                 X       

    2. 	Mbr          X                 X       

    3. COL MINNIEFIELD, ANITA R.	Mbr          X                 X       

    4. 	Mbr          X                 X       

    5. 	PO           X                 X