MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 14 October 1998
DOCKET NUMBER: AC97-05768
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.
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: Reinstatement on active duty at an appropriate rank and pay grade and all back pay and allowances from the date of his discharge until the date of his reinstatement.
APPLICANT STATES: Court-martial charges were preferred against him and then dismissed based on insufficient evidence. Then, an administrative discharge board was convened. He contends that the evidence presented to that board was insufficient to justify his discharge. To the contrary, testimony from two professionals clearly showed there was no basis to his ex-wifes allegation that he molested or in any other way abused his daughter. He states he will submit additional evidence, but none is included.
EVIDENCE OF RECORD: The applicants military records show:
He enlisted on 21 March 1982 and had continuous service until his discharge. There is no evidence in the record of any disciplinary action of any kind prior to the incident in question.
On 15 October 1992, court-martial charges were preferred against the applicant charging him with sodomy and indecent acts with a child under 16. On 2 March 1993, the Staff Judge Advocate informed the general court-martial authority that facts developed after preferring the charges led him to believe the applicant committed the charged offenses but it was unlikely the prosecution would be able to prove them beyond a reasonable doubt.
On 3 March 1993, the court-martial charges were withdrawn and dismissed without prejudice to the government.
On 23 April 1993, the commander initiated separation action under the provisions of Chapter 14, Army Regulation 635-200 for commission of a serious offense.
The applicant acknowledged the separation action. He requested his case be considered by a board of officers, he wanted to make a personal appearance before such a board, and wanted representation by counsel before such a board. He did not submit a statement in his own behalf.
On 20 September 1993, a hearing was held. The applicant and witnesses for the applicant appeared before the board. The board found by a preponderance of evidence that he had committed a serious offense and recommended his discharge with a general discharge.
On 27 September 1993, the applicant submitted a rebuttal requesting retention on active duty. He stated that his background as an abused child himself and his degree of concern for his family caused his answers to the Criminal Investigation Command (CID) investigators to appear like admissions. The allegations of abuse by his wife were self-serving and enabled her to divorce him in Germany. One of his witnesses testified under oath of his professional opinion that what his daughter said to his wife and CID agent was a learned experience through untrained leading questioning and not memories of sexual abuse by himself.
On 27 October 1993, the appropriate authority approved the recommendation for discharge and directed the applicant receive a general discharge.
On 8 November 1993, the applicant was discharged, with a general discharge, in pay grade E-6, under the provisions of Army Regulation 635-200, Chapter 14 for misconduct. He had completed 11 years, 7 months and 15 days of creditable active service and had no lost time. His awards and decorations included the Army Commendation Medal (3d Oak Leaf Cluster), the Army Achievement Medal and the Army Good Conduct Medal.
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 under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldiers overall record.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations it is concluded:
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. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The applicants administrative separation was accomplished in compliance with applicable regulations. The expert testimony of his two witnesses was considered by the board and his overall record of service was considered in recommending he receive a general discharge. The applicant has submitted no additional evidence.
3. 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
JNS EMW RWG DENY APPLICATION
Loren G. Harrell
Director
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