MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 12 MARCH 2002
         DOCKET NUMBER: AR2001066270

         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. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		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)

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APPLICANT REQUESTS: That his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: That he was accused of a crime that he did not commit, arrested and charged with two counts of incest. At that time he was assigned to the Chicago Recruiting Battalion. He was tried. There was a mistrial with jurors voting 11 to 1 that he was not guilty. He was retried, convicted, and sentenced to five years imprisonment. He appealed, and after 32 months, the appeal was approved. He was released in April 2000, found out that he was still in the Army and was eventually assigned back to Chicago. He traveled between Chicago and Kentucky for trial dates and for meetings with the Judge Advocate General at Fort Knox, Kentucky. The trial date was again moved back. The Army initiated administrative proceedings against him. He was involuntarily discharged. His trial date was again rescheduled, but finally, the charges against him were dismissed. He never admitted to the alleged crimes.

He was in prison for 32 months, losing time in service, pay, and one, possibly two, promotions. The Army waited 32 months for his appeal to be approved, but would not wait for the outcome of the next trial. He never received pay for approved temporary duty (TDY), and never received a final NCO evaluation report.

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

The applicant entered on active duty on 2 June 1983 and remained on continuous active duty until his discharge in 2001. Initially trained as a Pershing Missile Crewman, in 1988 he became a recruiter. The applicant has served in Germany, Fort Sill, Oklahoma, and in Kentucky, Tennessee, and in Chicago, Illinois on recruiting duty. He was promoted to Sergeant First Class in 1994. The applicant has completed numerous military courses, to include the Advanced NCO Course (ANCOC), and has been awarded various recruiter awards, two awards of the Army Commendation Medal, four awards of the Army Achievement Medal, and four awards of the Army Good Conduct Medal, among others.

Three orders published by Headquarters, Fort McPherson, show that the applicant, then assigned to the Army Recruiting Battalion, Chicago, was attached to the Army Recruiting Battalion, Nashville, on three occasions in 1996, because of a pending civilian trial. On 31 October 1997 he was released from attachment.

A 10 February 1998 transcript of evidence shows that the applicant was charged with two counts of incest against his half-sister, then a juvenile, and appeared before a trial at the Whitley Circuit Court on 29 October 1997. The applicant was found guilty and sentenced to five years imprisonment on each count, to run concurrently. On 7 January 1998 the court ordered that the applicant be confined in the state penitentiary for a maximum period of five years, and pending appeal, the applicant was remanded to jail.

On 30 April 1999 as modified on 18 June 1999, the Court of Appeals, Commonwealth of Kentucky, reversed the judgment of the Whitley Circuit Court and remanded the case for a new trial. The court ruled that the uncharged acts testified to by his half-sisters, KriB and MH, and the uncharged acts testified to by his niece, AH, were not so strikingly similar to the charged acts involving KarB as to indicate a probability that the acts were committed by the same person, and that the evidence was not relevant in showing the applicant’s intent, motive, or common plan. In effect, the trial court erred in allowing into evidence testimony by those individuals that he had also sexually abused them.

On 16 June 2000 the applicant underwent a medical examination. The report of that examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that the applicant furnished for the examination, he stated that his health was fair.

On 26 June 2000 the applicant was referred to a mental health clinic because of his pending separation action for misconduct. The clinical psychologist stated that the applicant was depressed because of his significant occupational, financial, and interpersonal circumstances. The depression was deemed situational though some of the predicaments were long standing and/or unresolved. He stated that the applicant’s continuation on medication was driven by his fear of depressive relapse if he discontinued it. He stated that a discussion with a psychiatrist and his participation in brief psychotherapy might aid in his coping. He stated that there were no psychological contraindications for the applicant to return to full duty.

On 13 October 2000 the applicant’s commanding officer notified the applicant, then assigned to the Army Recruiting Battalion, Chicago, that he was initiating action to separate the applicant from the Army for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. He stated that the reason for his proposed action was that: (1) the applicant engaged in indecent acts with his half-sister, KriB, who was then under the age of sixteen; (2) that he engaged in indecent acts with his half-sister, KarB, who was then under the age of sixteen, and engaged in adultery with her when she was sixteen years of age; (3) that he engaged in adultery with MH, his half-sister, when she was approximately seventeen years of age; and (4) that he indecently assaulted AH, his niece, when she was approximately fourteen years of age. He informed the applicant that he was recommending that the applicant receive an under other than honorable conditions discharge.

The applicant consulted with counsel, stated that he had been advised of the basis of the contemplated action, its effects, his rights, and the effect of any action taken by him in waiving his rights. He requested consideration of his case by an administrative separation board. He declined to submit a statement in his own behalf. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.

The applicant’s commanding officer recommended to the brigade commander that the applicant be discharged for commission of a serious offense. He informed the brigade commander that the applicant had been in civil confinement for approximately 3 years and was released when his conviction was overturned by a court of appeals. That official indicated that the applicant’s report of medical examination and mental status evaluation was enclosed with the recommendation.

On 16 January 2001 an administrative separation board convened to determine whether the applicant should be separated from the Army. The applicant was present for the proceedings and was represented by counsel. The board heard testimony from witnesses, both officer, NCOs, and civilians who testified to the applicant’s good character and integrity, and outstanding performance of duty.
The applicant’s step-father, the father of the two half-sisters of the applicant, KriB and KarB, was deposed and testified that when the applicant left [his house] after his visit during which he supposedly committed adultery with KarB, that half-sister had hugged the applicant when he got ready to leave. She never stated that he abused her, and later bought the applicant a birthday card.

The applicant’s mother was deposed and testified that her daughter, KriB, never expressed any problem with the applicant, and that neither of her daughters, KriB and KarB, seemed upset when they came home from school on the day that the applicant allegedly committed the indecent acts with KarB.

The applicant’s sister and the sister of KriB and KarB testified, stating that she spent time with her sisters after the alleged incidents, that they never mentioned anything to her, and never said anything derogatory about him. She stated that she found it hard to believe the allegations made by her sisters. She stated that her parents told her not to believe them.

The applicant testified, denying the allegations made by his three half-sisters, and stated that while he did play with his niece’s hair and kiss her on the cheek, the whole situation got out of hand, e.g., blown out of proportion, and that his niece had lied about touching her breast. He stated that the incident had occurred almost 15 years ago. The applicant stated that the individuals making the allegations, and pursuing the case against him had their own reasons for doing so, implying vindictiveness on the part of one of his relatives. He stated that he was not a sex offender, and that while in a rehabilitation program in prison he refused to write an evaluation concerning his actions, and was dropped from that program.
He stated that he never touched, raped, or physically did anything to those girls. He stated that they dropped the charges concerning his half-sister, KriB, because he could prove that he was not there [during the time of the alleged incident]. He stated that he did give his sisters a hard time because they were under achievers.

He stated that everything that he had was gone. His wife divorced him. He stated that the civilian trial will end and charges would be dropped.

The board findings and recommendations worksheet dated 16 January 2001 show that the board found that a preponderance of the evidence established that the applicant did commit a serious offense and that the board recommended that the applicant be separated from the service with an Other Than Honorable Conditions Discharge Certificate.

On 18 January 2001 the applicant’s counsel requested that the findings and recommendations of the board be set aside. He stated in effect that the board did not determine whether each of the four allegations in the notice of proposed separation was supported by a preponderance of evidence, but that a review of the findings and recommendations worksheet completed by the board revealed that such a finding was not made, but only a general finding of misconduct was made, a clear violation of the regulation. He stated that the regulation stated that the separation authority could return the case to the same board for compliance with the regulation if the board had failed to make the required findings or recommendations, and cited why such action would be appropriate.

On 6 February 2001 the Brigade Judge Advocate, United States Army 3d Recruiting Brigade, stated that the defense counsel had ample and numerous opportunities to object to the findings and recommendations of the board, and neglected to do so, and that the fact that defense apparently did not feel the error (if any) was serious enough to address at the appropriate time and in an appropriate fashion, however, severely undercut defense arguments that the error constituted a serious defect.

Nonetheless, a findings and recommendations worksheet of 13 March 2001 shows that the board unanimously determined that the allegation that the applicant engaged in indecent acts with KarB, his half-sister, who was then under the age of sixteen, and engaged in adultery with her when she was sixteen; and the allegation that the applicant indecently assaulted AH, his niece, who was then fourteen years of age; were supported by a preponderance of the evidence. The board determined that the other two allegations were not supported by a preponderance of the evidence. The board recommended, by a unanimous vote, that the applicant be discharged from the Army with issuance of an Other Than Honorable Conditions Discharge Certificate. The formal report of board proceedings reflected those findings and recommendations. The assistant Staff Judge Advocate, Army Recruiting Command, stated that he had reviewed the board proceedings and that they were administratively correct. The separation authority approved the findings and recommendations on 24 March 2001. On that same date he directed that the applicant be discharged and issued an Other Than Honorable Discharge Certificate.

The applicant was discharged on 6 April 2001. His DD Form 214 shows that he had 15 years, 3 months, and 28 days of service, and lost time from 20 February 1996 through 11 March 1996, and from 31 October 1997 through 3 April 2000. That form shows that he was separated under the provisions of Army Regulation 635-200, chapter 14, Section II, and that his separation code was “JKB.”

On 7 June 2001, the Whitley Circuit Court dismissed, without prejudice, the case against the applicant.

On 21 November 2001 the Army Discharge Review Board denied the applicant’s request to upgrade his discharge. That board, however, did determine that a mistake was made in the regulatory authority and the separation code on his DD Form 214, and changed those entries from Chapter 14, Section II, AR 635-200 (misconduct – civilian conviction), separation code “JKB,” to Chapter 14-12c, AR 635-200 (misconduct – commission of a serious offense), separation code “JKQ,” in accordance with the decision made by the separation authority. On 26 December 2001 the applicant’s DD Form 214 was corrected accordingly.

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. Paragraph 14-12c states that soldiers are subject to separation for 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 a closely related offense under the Manual for Courts-Martial (MCM). 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 soldier’s overall record.

The maximum punishment authorized by the MCM for adultery is a dishonorable discharge, 1 year confinement, and forfeiture of all pay and allowances. The maximum punishment for indecent assault is a dishonorable discharge, five years confinement, and forfeiture of all pay and allowances.

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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. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The character of the discharge is proper considering the nature of his offenses.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. 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 that requirement.

4. 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

__INW __ __RJW __ __GJW__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001066270
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020312
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	189
3.
4.
5.
6.