MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         13 January 1999     
	DOCKET NUMBER:   AC97-09385
				   AR1999014872

	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. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Margaret V. Thompson		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)

APPLICANT REQUESTS:  In effect, the applicant requests that his under other than honorable discharge be voided, that he be restored to active duty effective 23 May 1994, with the restoration of all rights, privileges, and property.  

APPLICANT STATES:  Applicant made no statement, but relied upon the information and exhibits furnished by counsel.

COUNSEL CONTENDS:  Counsel provides an 88 page brief with 98 exhibits in support of the applicant (COPY ATTACHED).  Counsel provides a statement of case in which he says that the applicant, then a regular Army Staff Sergeant stationed at Fort Carson, Colorado, and living in Fountain, Colorado, was accused by his daughter in February 1993 of sexually abusing her.  The applicant was charged in the district court of El Paso County, Colorado with six counts of sexual assault on a child or sexual exploitation of a child.  As part of a plea bargain, and at the request of his wife, the applicant pleaded guilty to one count of sexual abuse of a child with the sentencing judgment declaring applicant to be convicted being deferred for a period of four years.  Consequently, as a result of the applicant’s plea of guilty, and having been erroneously perceived as having been convicted by a civil court, the applicant was administratively discharged under other than honorable conditions on 13 June 1994 by reason of misconduct, conviction by civilian authorities. 

Counsel states that the applicant contends that his discharge was materially and legally in error, and unjust, in that:

•	The applicant denies that he sexually abused or assaulted his daughter;
•	There is no direct, probative or corroborating evidence that he sexually abused his daughter;
•	Applicant’s daughter never testified under oath regarding the allegations;
•	Applicant’s plea of guilty was made expressly for the purpose of his wife and daughter not having to testify at a civilian criminal trial;
•	The applicant’s quality of service and performance of duty attest to his good character; and
•	The board of officers convened to consider the applicant’s discharge, was among other things, not legally sufficient.

Counsel provides a brief synopsis of the applicant’s civilian and military history, to include his civilian and military educational attributes, his promotion and assignment history, and his quality of performance as evidenced by his awards and outstanding evaluation reports.

Counsel provides information concerning the applicant’s (and family) residences in Colorado Springs and in Fountain, stating that the townhouse in Fountain was rental property, and that the split foyer in Fountain was purchased in August of 1992.  Counsel provides a detailed schematic diagram of both these residences.

Counsel furnishes information concerning the applicant’s whereabouts from 
July 1992 to February 1993, to include the statement that the applicant was on staff duty from 0800 hours 9 October 1992 until 0800 hours 10 October 1992, the later date being his daughter’s 13th birthday.  Counsel also states that the applicant’s daughter had a slumber party with seven other girls the night of 
9 October 1992 and that during the day of the 10th, the applicant’s wife took her daughter and her seven friends to an amusement facility.  Counsel states that while in Korea, and sometime between 27 December 1992 and 
24 February 1993, the applicant’s daughter’s grade report, dated 29 March 1993, showed that she received a “D” in science, and consequently the applicant  “grounded” his daughter, and restricted her use of the telephone and television.

Counsel states that a counselor at his daughter’s school, on 24 February 1993, made a report of suspected child abuse, in which the applicant’s daughter stated that the applicant had been sexually abusing her over a six month period of time. This information was reported to a detective in the city of Fountain police department.

The police department offense report, as described by counsel and which is exhibit 26 of counsel’s brief, includes the interview by the Fountain police department detective with the applicant’s daughter, in which she provided specific incidents of sexual abuse by her father, both at the rented townhouse and the purchased house in Fountain.  One of those incidents supposedly took place in the early morning of her birthday, and the last incident early Christmas morning in 1992.  She stated that the applicant had taken pictures of her, two of which were nude shots.  She also stated [to the detective] that other incidents had occurred, but did not provide details.  Counsel states that the detective informed the applicant’s mother of the allegations made by her daughter, and that the detective stated that the daughter’s mother was confused by the situation, but appeared to be supportive of her daughter.  Counsel faults the detective for this speculation and conjecture; and in effect, implies that the detective’s investigation was less than thorough.

Counsel goes on to say that the Fountain police detective requested investigative assistance from the CID, and relates information involving the CID investigation, both in Korea and at Fort Carson, to include information concerning the removal of photographs, several of which appeared to be sexually explicit photographs of the applicant’s wife.  The special agent in Korea notified his counterpart at Fort Carson that the two pictures of his daughter depicted nothing of evidentiary value [in that the pictures showed his daughter fully clothed], and the remaining photos were of his wife, some of which were normal, but for the most part depict her naked and in some various positions.  That agent did say that the SJA in Korea would not prosecute the applicant and that he [the agent] would not recommend prosecution.

Counsel states that the Fountain police detective talked with the applicant’s daughter again on 15 March 1993, and she informed him that she had talked with her father on several occasions and her father had attempted to get her to change her story.  Counsel states that the applicant categorically denied he had attempted to do so.  The Fountain police detective reviewed the photographs at CID headquarters at Fort Carson [the photographs of the applicant’s daughter show her fully clothed], and that based on the information in the case he informed the CID that he would be taking the case to the district attorney’s office for trial.

Counsel states that an “information” was filed in the district court, El Paso County, which contained four counts against the applicant, and on 27 April 1993 a warrant was issued for his arrest.  

Counsel states that on 11 May 1993 the CID rendered a final report, indicating the dates, time and location of the alleged occurrences, the report being somewhat at variance [in minor details] with the report of the 
Fountain police detective.  Counsel raised other objections to this report, to include the CID failure to state that there was no evidence that the applicant took pictures of his daughter without clothing.  

On 29 July 1993 an amended information was filed in the district court which contained two additional charges against the applicant, two charges of sexual assault on a child.  In June 1993 the applicant was returned to Fort Carson.

Counsel states that an investigator from the district attorney’s office contacted the applicant’s daughter’s science teacher, who informed him that she [the daughter] received a D in his class for the whole semester.  Counsel states that on 1 October 1993 the applicant, on the advice of his civilian counsel, underwent a polygraph examination, in which he stated that he felt the reason his daughter was making the allegation was because he was the only person in the family who was the disciplinarian, and that, in effect, the allegations surfaced only after he told his wife to ground his daughter and take the television out of her room, after he received his daughter's report card.  The applicant denied any sexual involvement with his daughter.  The polygraph examiner considered that the applicant was truthful when answering the relevant questions.
 
On 14 December 1993 the Colorado Springs police department conducted a polygraph examination of the applicant.  That examiner concluded that the applicant had not been truthful concerning relevant questions concerning sexual involvement with his daughter.  Counsel takes exception to this conclusion stating the applicant’s responses to the examiner’s questions during the pretest impacted on her interpretation of the relevant questions.  Counsel also states that if the applicant had been guilty of the allegations he would not have submitted to this examination.  Counsel states that the applicant denied that he was not telling the truth, and that the conclusion by this polygraph examiner should not be used by this Board as a basis for denial of relief.

On 11 January 1994 the applicant, as part of a plea bargain, pleaded guilty to one count of sexual assault on a child.  As part of the plea bargain arrangement, the applicant executed a stipulation for deferred judgment and sentence and court order, in which the applicant stipulated that the court would, following applicant’s plea of guilty to sexual assault on a child, defer sentencing on such court for a period of four years, that the case would remain open, but that the usual next step in the proceedings, namely the judge’s imposing a sentence and entering a judgment of conviction declaring applicant to be convicted would be deferred as long as applicant complied with cited conditions.  The applicant stated in this stipulation:  “Even though this case may be dismissed by the court without a formal conviction…I admit that I have in fact committed a felony crime”.

Counsel then provides information concerning the recommendation by the applicant’s commander that he be separated under the provisions of Army Regulation 635-200 because of misconduct/conviction by a civil court.  That recommendation states that the applicant had committed misconduct/conviction by a civil court consisting of attempted rape, indecent acts with a child, indecent assault on a child, incest, and sodomy.  Counsel takes exception with the recommendation stating that it was legally objectionable, that the applicant entered a plea of guilty only to one count of sexual assault on a child, and that the applicant, as part of the plea bargain, was not convicted.  He also states that all of the applicant’s awards were not indicated on the recommendation, that the recommendation failed to address the applicant’s performance and potential, and took exception to the commander’s statement concerning, “rehabilitation would not be in the best interests of the Army…”, and “the applicant had no potential for useful service….”  On 17 February 1994 the applicant’s commander advised the applicant that he was initiating separation action.  The applicant acknowledged receipt and requested consideration of his case by an administrative separation board.  The case was forwarded through command channels with a recommendation that the applicant receive an under other than honorable conditions discharge.  The second endorsement indicated that the case was legally sufficient, which is disputed by counsel.  

Counsel states that a board of officers was appointed by the 4th Infantry Division commander on 15 March 1994.

A 28 March 1994 psychological report based on an evaluation initiated by the applicant upon the recommendation of his civilian counsel revealed that the applicant had a personality disorder with passive-aggressive and avoidant features; that the applicant did have problems, to include those stemming from the accusation in 1983 of attempted rape [for which he was court-martialed and reduced in rank; the female involved was eventually charged with perjury and kicked out of the military], and marital problems with his wife.  He and his wife separated when he went to Germany in 1988 and he had an affair with a woman and fathered a child by her; however, he ended the relationship when he left Europe in 1990  (Note:  Counsel states that the applicant resumed the relationship after being divorced from his wife in December 1994).  The psychologist indicated that the applicant had strong prosocial values, and a commitment to his family, that he was under considerable pressure and experiencing significant anger.  There was no evidence of unhealthy sexual preoccupations.  The evaluation could neither confirm nor disconfirm the veracity of the allegations against him.

Counsel includes letters of recommendation from both the applicant’s commander in Korea and his commander at Fort Carson, who was none other than the battalion commander who also recommended that the applicant be separated, and separated with an under other than honorable conditions discharge.

Counsel includes in his brief a summarized transcript of the administrative board proceedings of 9 May 1994, which he states lasted 2 hours and 47 minutes.  Counsel contends that it was not possible for the board members to carefully. intelligently, and objectively read and digest the separation packet in ten minutes [the amount of time that elapsed from when they recessed to review the packet until they reconvened], proving that the board hearing was a meaningless formality, and that the applicant’s resultant discharge was arbitrary, capricious, materially and legally in error and, most of all, unjust.

Counsel cites the testimony of the applicant’s wife, in which she stated, in effect, that she did not know whether or not the applicant committed the alleged offenses; however, she wanted him to plea bargain because if the case were to go to trial it would be devastating to herself and her daughter.  She stated that she encouraged him to plea bargain and her husband said that he pled guilty because we (family) asked him to say that.  She stated that the allegations by his daughter surfaced shortly after her husband disciplined her (over the phone) for her low grades on her report card.  She stated that her daughter had lied before but never like this; however, she (the daughter) has not since changed her story.  
Two enlisted soldiers and two officers testified on behalf of the applicant primarily as to the quality of his duty performance.

The applicant testified that he accepted the plea bargain because he could not see going to prison for something that he did not do, and could not see putting his wife or his daughter through this [court trial].  He stated that when he pled guilty he lied.  He stated, in effect, that he could not have molested or sexually abused his daughter during some of the periods and dates which the incidents supposedly occurred because he was not at home, i.e., TDY during most all of July, early formation during the 1st to the 15th of August, and staff duty during the morning of her birthday (she had female friends over for a slumber party, and it would not have been possible for him to do anything after he got off staff duty and returned home).  He stated that even though he could prove he was not around on the dates she made the allegations, going to court would be a calculated risk, so he took the plea bargain.

Counsel states that the administrative board deliberated and made its findings and recommendation in 22 minutes, recommending that the applicant be separated with an under other than honorable conditions discharge.  Counsel contends that the findings and recommendation appear to have been prepared prior to the convening of the board.

Counsel contends that the findings and recommendations were legally objectionable and deficient and did not even rise to a sparse analysis of the evidence, that the board’s failure to secure confirming evidence of the applicant’s TDY to Fort Irwin, California in July 1992 and having performed duty as a staff duty NCO on 9/10 October 1992, among other things, clearly show that the proceedings were a meaningless formality.

Counsel states that the applicant’s civilian lawyer at that time wrote the convening authority on 13 May 1994 requesting that the applicant be permitted to remain on active duty.  The applicant’s lawyer stated that after discussing the plea bargain with the applicant and his wife, the applicant had only reluctantly agreed to plead guilty based on the offer of a deferred sentence.

Included with counsel’s brief is a staff paper apparently prepared by a staff judge advocate to the convening authority, stating that the applicant had committed misconduct/conviction by civil court consisting of attempted rape, indecent acts with a child, indecent assault on a child, incest, and sodomy; and recommending that the convening authority approve the findings of the elimination board.  The staff judge advocate in correspondence to the convening authority stated that the proposed elimination was legally sufficient.  Counsel takes exception to the offenses described to the convening authority, stating that the applicant was not convicted by a civil court, and further, the applicant was not convicted of attempted rape, indecent acts with a child, indecent assault on a child, incest and sodomy.  The recital was not only erroneous but patently inflammatory and prejudicial in relation to the convening authority’s approval of the board’s findings and recommendation. 

On 23 May 1994 the convening authority approved the applicant’s separation.  On 13 June 1994 the applicant was discharged under other than honorable conditions.  Counsel states that the board’s proceedings were not legally sufficient, the findings and recommendations were legally objectionable, and the convening authority’s approval of the findings and recommendation was legally objectionable.

Counsel provides information concerning the applicant’s enrollment and successful completion of a sexual abuse treatment program, stated that the applicant was divorced from his wife in December 1994, with custody of their children to both parties, and stated that on 28 October 1996 pursuant to applicant’s motion to terminate the deferred sentence, a judge so ordered and dismissed the case in its entirety.

Counsel provides copies of greeting cards as evidence of the applicant’s relationship with his former wife, his daughter, and his son.  Some of these cards (birthday, anniversary) were from his former wife subsequent to initial allegations of misconduct by his daughter, and one birthday card was almost three years subsequent to the applicant’s divorce. 

Counsel provides a letter of support from a retired first sergeant, who worked with the applicant, and knew him and his family.  That individual stated that the applicant was one of the best NCOs that he ever met, that he could not believe the allegations against him, and that he would trust him with his own children.

Counsel provides a history of the applicant’s employment since his discharge. 

Counsel provides both procedural and substantive considerations in his discussion of this case, beginning on page 64 of his brief and continuing to its conclusion.  In effect, counsel states that there was no direct, probative, and/or corroborating evidence that the applicant abused his daughter; the commanding officer’s recommendation was legally objectionable because the applicant was not convicted by a civil court, and because the factual reasons for his recommendation, i.e., attempted rape, indecent acts with a child, incest, and sodomy, were erroneous; the consideration of the CID report, which lacked specificity, by the applicant’s commanding officer was legally objectionable; the command influenced the board proceedings by the wording of an endorsement appointing a member of the board; the board could not adequately review and comprehend the separation packet in the brief time (10 minutes) that it used to do so; the unit commander reviewed the inflammatory and totally prejudicial recital contained in the final CID report; the unit commander, the board, and the convening authority failed to ascertain the timing of the allegations by the applicant’s daughter in relation the timing of her father’s disciplinary action; the board failed to address or reconcile the applicant’s mental status evaluation mitigating against a determination that the applicant had engaged in any misconduct; the board consulted with a legal advisor ex parte in deciding not to admit the polygraph examination that was favorable to the applicant, and his constitutional right to due process of law was violated by the exclusion of this examination; the board’s failure to recite closing argument on behalf of the applicant for review by the SJA or the convening authority was legally objectionable and violated the applicant’s right to due process of law; the board failed to show why evidence contrary to the ultimate conclusion was disregarded or given lesser weight, i.e., the testimony of the applicant’s wife that she asked the applicant to plea bargain; the action by the commanding general (convening authority) was erroneous because of the inflammatory and prejudicial information concerning the applicant’s conviction by a civil court, i.e., rape, incest, etc.; and the SJA statement that the board proceedings were legally sufficient was not true. 

Counsel provides substantive considerations as grounds for relief to include the applicant’s denial of guilt under oath; the timing of the allegations; and the applicant’s improvident plea of guilty.

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

The applicant entered the Army in 1977 and remained on continuous active duty until his discharge in 1994.  He has served in various locations throughout the world, to include Fort Dix, New Jersey, Fort Lee, Virginia, Fort Carson, Colorado, three tours of duty in Germany, and an uncompleted tour of duty in Korea.  He has received various awards, such as the Army Achievement Medal, the Army Commendation Medal, and multiple awards of the Army Good Conduct Medal.  His education and training include Army leadership courses, an instructor course, advanced NCO course, and training in the supply and chemical fields.  The applicant attained the rank of Staff Sergeant in 1982; however, he was reduced to Sergeant in May of 1983 as a result of conviction by a summary court-martial for wrongfully attempting to have sexual intercourse with a female soldier, not his wife.  He was promoted to his former rank of Staff Sergeant in October 1985.
A review of the applicant’s evaluation reports indicates, as counsel has stated, that the applicant’s performance during his years of service, has indeed been commendable.

Most of the evidence in this case is included in counsel’s brief with the accompanying exhibits; however, the information contained in the administrative board proceedings from the onset of the recommendation for separation by the applicant’s unit commander is reiterated.

On 17 February 1994 the applicant’s commanding officer notified the applicant that she was initiating action to separate him for misconduct/conviction by a civil court.  The reasons given was attempted rape, indecent acts with a child, indecent assault on a child, incest, and sodomy.  She informed him that she was recommending that he receive an under other than honorable conditions discharge.  On 22 February 1994 the applicant acknowledged receipt of this notification, consulted with counsel, and stated that he was aware of the basis for the contemplated action, its effects, and the rights available to him.  He requested consideration of his case and personal appearance before an administrative separation board. The applicant’s commander, in an undated memorandum to her commanding officer, recommended that the applicant be separated from the Army because of misconduct/conviction by a civil court consisting of attempted rape, indecent acts with a child, indecent assault on a child, incest, and sodomy.  That recommendation did not, has counsel as asserted, show all of the applicant’s awards, and did state that rehabilitation would not be in the best interests of the Army, and the applicant had no potential for useful service.    

That recommendation and supporting documentation as presented to the administrative separation board include:  

•	A 24 February 1993 report of suspected child abuse reported by an official of the Fountain-Fort Carson Public Schools to a detective in the Fountain police department.
•	The narrative section of detective’s report, which shows that he interviewed the applicant’s daughter on 24 and 25 February 1993.  That narrative indicates that she provided the detective information concerning five specific instances of sexual abuse/assault by her father, the first one in late July or early August 1992, the second one [she believed] in early August 1992, again in the early morning of 10 October 1992 (her birthday), another incident (date unspecified) in which he took pictures of her, two of which were with no clothes on, and one incident on Christmas morning in 1992.  She also informed the detective that there were quite a few other times when she had been touched by her father.
•	A 4 March 1993 correspondence from a CID special agent in Korea to his counterpart at Fort Carson, in which that agent stated that the two pictures of the applicant’s daughter depicted nothing of evidentiary value, and stated that the SJA here [in Korea] won’t prosecute and he, the agent would not recommend prosecution. 
•	An 11 May 1973 CID report of investigation summarizing the investigation by the Fountain Police Department.  The time periods of some of the incidents are somewhat at variance with those indicated in the aforementioned detective’s report, i.e., the first incident on the CID report indicates that it  happened during the last two weeks of July 1992.  This report also revealed the collection of the photographs by a CID agent, which showed the two pictures of a black female believed to be the applicant’s daughter, and several sexually explicit pictures of the applicant’s wife. 
•	An order showing that the applicant was returned to Fort Carson from Korea in June of 1993.
•	An 11 January 1994 stipulation for deferred judgment and sentence and court order, filed in the El Paso District Court on 13 January 1994, in which the applicant and his attorney agreed and stipulated that the court, following his pleading guilty to sexual assault on a child, defer sentencing on such count for a period of four years.  The applicant agreed that his case would remain open, but that the usual next step in the proceedings, namely the judge’s imposing a sentence and entering a judgment declaring him to be convicted would not be taken as long as he complied with certain conditions, and that if he complied with those conditions, his guilty plea would be withdrawn at the end of the deferral period and the count, or counts, would be dismissed forever.  He agreed that even though his case might be dismissed by the court without a formal conviction, he admitted that he had in fact committed a felony crime.  A judgment of conviction was filed in the district court              on 13 January 1994.

On 1 March 1994 the recommendation for separation was forwarded to the convening authority, and that official directed that a board determine whether the applicant should be discharged for misconduct/conviction by a civil court.
In a 9th endorsement to the recommendation for separation, the convening authority, in replacing a board member, used the phrase:  “The next available board member … will serve as a board member in the elimination proceedings against (the applicant).”

The board convened on 9 May 1994.  The applicant and both military counsel and his civilian attorney were present at the board proceedings.  Witnesses were called – the applicant’s wife, and four soldiers who testified on behalf of the applicant.  The testimony from the applicant’s wife, the applicant, and the four soldiers is as depicted in counsel’s contentions.  The time period of the proceedings, to include the 10 minute recess to review the separation packet, is as depicted in the counsel’s contentions.  The board did consult with a legal advisor, apparently not appointed to the board, and ruled not to accept the polygraph test results as evidence.

The board found that the allegations in the notice of the proposed separation were supported by a preponderance of the evidence, and recommended that the applicant be separated for misconduct/conviction by a civil court and issued an under other than honorable conditions discharge certificate.  Those two actions were indicted by a check mark before the aforementioned finding and recommendation; however, there were other options available on the form to the board, to include those favorable to the applicant.

There is an undated paper prepared for the commanding general (the convening authority), in which a recommendation is made that that official sign the endorsement approving the findings of the elimination board, and stating that the applicant had committed misconduct/conviction by civil court consisting of attempted rape, indecent acts with a child, indecent assault on a child, incest, and sodomy.  There is also an undated endorsement from the command SJA stating that the proposed elimination had been reviewed and was legally sufficient.

On 23 May 1994 the separation authority approved the recommendation for separation.  The applicant was discharged on 13 June 1994.  He had over 
17 years of service.

The information contained in counsel’s brief concerning the results of a psychological report on 28 March 1994 (exhibit 64) are considered as part of the evidence, as is the information contained in the letter from the applicant’s attorney to the convening authority, subsequent to administrative board’s decision, in which that attorney stated that the applicant reluctantly agree to plead guilty, based on the offer of a deferred sentence, to one count of sexual assault on a child.

The copies of the greeting cards submitted by counsel are also part of the evidence, as is the information provided by counsel concerning the applicant’s post service activities, the information concerning his successful completion of a sexual abuse treatment program, and the order to terminate the deferred sentence.  The letter of support from the retired first sergeant is also considered part of the evidence.

The grade report, dated 29 March 1993, which shows that the applicant’s daughter received a “D” grade in science is part of the evidence of record, as is the district attorney’s interview with her 7th grade science teacher on 
25 August 1993.

Also accepted as evidence of record is the report by the Fountain police detective in which he stated that he contacted the applicant’s daughter on 
15 March 1993 at which time she informed him that her father had attempted to get her to change her story, but she told him, her father, that she was not going to do so. 

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the legal advisor to the Army Review Board Agency.  He stated, in effect, that the applicant’s separation action was legally sufficient in that the governing regulation allows a separation for a civil conviction when action is taken by civil authorities which is tantamount to a finding of guilty if a punitive discharge would be authorized for the same or a closely related offense, and that sexual assault on a child equates to an indecent assault as a minimum, the maximum punishment for which includes a dishonorable discharge.  The fact of the plea is tantamount to a finding of guilty, without regard to subsequent action.

The aforementioned advisory opinion was provided to the applicant’s counsel, who responded with a 17 August 1998 supplemental memorandum (COPY ATTACHED), in which he takes exception to the legal advisor’s opinion.  Counsel states that the legal advisor’s opinion is not an accurate, thorough, and objective evaluation of the matters and evidence cited in applicant’s brief, and that this Board reject the adverse, inflammatory and prejudicial recitals in that opinion, and not utilize that opinion as a basis for the denial of relief.   

Counsel states that the legal advisor failed to address and reconcile the specific and detailed procedural and substantive considerations cited and discussed in the applicant’s brief.  Counsel states that the legal advisor failed to address or reconcile the question of whether the matters and evidence presented as grounds for relief demonstrate the existence of probable material error and/or an injustice.  Counsel states that the legal advisor failed to advise that the sum of the evidence proves that the applicant’s plea of guilty was improvident, and therefore the applicant’s discharge was unjust; counsel disagrees with the legal advisor’s opinion that “the ABCMR is not an appropriate forum to retry this plea agreement”, and states that the applicant is not intending to do so, but is seeking a determination that the underlying facts shows that his discharge was unjust.  Counsel criticizes the legal advisor for his lack of comment concerning the evidence in the case, to include the applicant’s assertion that he swore under oath that he was not guilty, and the testimony provided by the applicant’s wife that the applicant very reluctantly yielded to the request of his wife that they not be required to testify at civilian criminal trial.  Counsel contends that the legal advisor is wrong in his repeated recital as to applicant’s “conviction”, because the record proves there was no civil conviction, stating that the discharge action was in violation of the governing regulation.  Counsel states that the discharge action was taken on the basis of a conviction, which did not occur, and not because applicant’s improvident plea was tantamount to a plea of guilty.

Counsel states that the legal advisor should have acknowledged that there was ample evidence that the elimination board and the discharge authority both utterly failed to give due regard to convincing evidence that warranted the applicant’s having been retained on active duty, to include the testimony of the applicant’s wife, the matter of the timing of the allegations, the untested allegations, the applicant’s lengthy and outstanding record and evidence of good character.

Counsel requests that this Board not use the legal advisor’s opinion as basis for the denial of relief and that the Board determine that there is evidence to warrant relief or that the applicant should be granted a hearing and thereafter be granted relief. 

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.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct. 

Paragraph 14-5a states, in effect, that a soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a closely related offense under the MCM.

Paragraph 14-7 states, in effect, that retention should be considered only in exceptionally meritorious cases when clearly in the best interest of the Army.  However, cases may arise which warrant consideration with a view toward retaining the soldier in the service.  In deciding whether retention should be recommended or approved, consider the gravity of the offense, related events, and any matters in extenuation.  The military record of the soldier before the offense should be considered, as well as prospects for rehabilitation.

Paragraph 14-12 states, in pertinent part, that soldiers are subject to separation for commission of a serious offense to include commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or closely related offense under the MCM.  

Paragraph 14-17 states, in pertinent part, that on receiving a recommendation for separation the separation authority may convene a board of officers as prescribed in chapter 2, section III, to determine whether the soldier should be separated for misconduct. 
 
Section III of chapter 2 provides for the administrative board procedure, and states that the applicant’s commander will notify the soldier in writing that his separation has been recommended and will cite the specific allegation on which the proposed action is based, provide the soldier other information concerning the action, to include the type of discharge recommended, and the rights available to the soldier.

That section also provides for the composition of the administrative board and the board procedures.  Among other requirements, the commander will advise the soldier in writing of the specific basis for the proposed discharge action and will advise the soldier that he has the right to submit any answer, deposition, sworn or unsworn statement, affidavit, certificate, or stipulation.  This includes depositions or affidavits of witnesses.  The soldier may request the attendance of witnesses.  The soldier and his counsel may question any witness who appears before the board, and the soldier or counsel may present argument before the board closes the case for deliberation on findings and recommendations.  Failure of the soldier to invoke any of the above rights after he has been apprised of the same will not have an effect upon the validity of the separation proceedings.  The proceedings of the board will be summarized as fairly and accurately as possible. They will contain a verbatim record of the findings and recommendations.

The MCM provides for a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years for indecent assault and confinement for 7 years for indecent acts or liberties with a child.

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

1.  The applicant’s discharge from the Army under other than honorable conditions for misconduct/conviction by a civil court was correct and warranted.  

2.  The Board acknowledges the errors made by the applicant’s commanding officer, who stated that the applicant committed misconduct/conviction by a civil court consisting of attempted rape, indecent acts with a child, indecent assault on a child, incest, and sodomy; and notes that that same information was provided to the convening authority subsequent to the findings and recommendation made by the administrative separation board.  Nonetheless, the evidence does show that action was taken by a civil court that was tantamount to a finding of guilty, that the applicant, as part of a plea bargain, pleaded guilty to one count of sexual assault on a child, and admitted that he had committed a felony crime.     

3.  The Board also acknowledges that the imposition of a sentence and entering a judgment of conviction in the civil court proceedings was deferred, and that the deferred sentence was ultimately terminated.

4.   The fact that the applicant’s commanding officer, in her recommendation that the applicant be separated, did not show all of the applicant’s awards on that recommendation, is discounted as nonsensical, as is the wording, “against (the applicant)” used by the convening authority, in replacing a board member.  There is no indication or evidence whatsoever that this inadvertent, and/or careless, word in an endorsement to replace a board member was a command attempt to influence board proceedings.
  
5.  The Board is keenly aware of the testimony and evidence presented during the administrative board proceedings, to include the applicant’s contention that he was not guilty, that he lied [in the civil court proceedings], and that he could have proven he was not around on the dates his daughter made the allegations; the timing of the allegations in relation to the applicant’s disciplinary action; and the assertion by the applicant’s wife that she asked the applicant to plea bargain. This Board feels that if the applicant could have proven that he was elsewhere during the dates of the incidents (as alleged by his daughter), he should have done so, if not during a civil court proceeding, then at least during the administrative board proceeding that met to determine the fate of his Army career.  The Board also notes that the applicant’s wife has not discounted her daughter’s allegations, stating that she did not know whether or not the applicant committed the alleged offenses, nor has the applicant’s daughter recanted her allegations.  The Board considers that those allegations made by the applicant’s daughter, if untrue as the applicant contends, required a vivid and descriptive imagination on her part, that belied her age (at that time 13) and experience.  

6.  There were errors in the applicant’s separation action as indicated above; however, this Board concludes that the outcome of the applicant’s case would not have changed had these errors not been made.  The applicant pleaded guilty to a felony crime, sexual assault on a child, and action taken by a civil court tantamount to a finding of guilty, which is punishable under the MCM by a dishonorable discharge.  The administrative board proceedings were fair and the character of his discharge was appropriate.  There is no injustice done the applicant.  

7.  The Board is cognizant of the applicant’s credible performance during his 
17 plus years of service, his letters of recommendation, and his good post service conduct; none of these factors, either individually or in sum, warrant the relief requested.  
  
8.  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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.