MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003087434

         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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APPLICANT REQUESTS: In effect that his dismissal be rescinded and the characterization of his service be changed to uncharacterized and that he be credited with the time lost in confinement. He also requests that an honorable discharge be issued for the time period from 3 November 1969 through 3 November 1972 and for the period 3 November 1972 through 26 March 1987.

APPLICANT STATES: That he received honorable discharges for previous periods of service. The transcribed record of trial does not reflect a period in which the members of the panel returned to question the military judge about the meaning of a dismissal. He has tried to get the original tape but it no longer exists. He believes that if the record contained this portion of the proceedings or if his counsel had addressed this issue post-trial the convening authority might not have approved the sentence.

He contends that trial counsel's words at page 123 and page 139 show that the members of the court-martial panel were asked to dismiss him but not give him a dishonorable discharge which means that his service should be uncharacterized. In support of this argument he submits a copy of the DD Form 214 (Certificate of Release of Discharge from Active Duty) of an Air Force officer who was dismissed with uncharacterized service.

In support of his request for the two separate honorable discharges he submits an excerpt, apparently of paragraphs from the Federal Register, which defines conditional and unconditional discharges [presumably] for Department of Veterans Affairs (VA) purposes.

The applicant contends that his overall record of service warrants recharacterization of service to honorable and submits copies of several award certificates and similar military record documents to substantiate his case.

He submits several letters of support from individuals, a minister, work supervisors and managers. He also submits certificates from a local law enforcement agency indicating that he has no local arrest record.

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

He was a chief warrant officer four with approximately 23 years of service when, on 7 May 1988 he pled guilty before a general court-martial to committing sodomy and indecent acts on a child under the age of 16 years [the 10 year old daughter of a neighbor], between 1 August and 13 December 1987. The members of the court-martial panel sentenced him to forfeiture of all pay and allowances, confinement for 25 years and dismissal from the service.

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The staff judge advocate (SJA) reviewed the applicant's record, the record of trial, a post-trial request for clemency from the applicant, and his attorney's memorandum requesting that it be considered. He noted a prior (1979) general court-martial conviction for a similar offense. He also noted a pretrial agreement that, in exchange for the applicant's guilty pleas, limited the confinement to 10 years. He recommended that the convening authority approve the findings and the sentence in accordance with the pretrial agreement. On 15 August 1988 the convening authority approved the sentenced forfeitures, dismissal and 10 years confinement and, except for the dismissal, ordered the sentence executed.

On 13 April 1989, the Army Court of Military Review found that the defense had effectively waived the inclusion of a panel member who was junior in rank to the accused by not challenging him for cause. It also considered and rejected appellate defense counsel's contention that the military judge had erred in not sustaining defense counsel's objection to testimony by the applicant's unit commander about the applicant's rehabilitation potential. The findings of guilty and the sentence were affirmed.

On 27 November 1989 the United States Court of Military Appeals denied the applicant's petition for review and the conviction became final. The Secretary of the Army issued a supplementary general court-martial action and ordered the sentence to dismissal executed. The applicant was dismissed effective on 9 April 1990 and his service characterized as dishonorable.

The applicant's 11 January 1991 application to this Board was administratively closed because he was still under the jurisdiction of the Army Clemency and Parole Board.

The Army Clemency and Parole Board released him on parole on 5 February 1993 and he was released from parole on 16 May 1998 at the expiration of his sentence.

Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the policy and procedures for the separation of officers. Paragraph 1-21discusses the various types of discharges and the various characterizations of service. It states, "When an officer's tour of AD is terminated due to discharge, retirement, or REFRAD, the period of service will be characterized as "Honorable," "General" ("Under Honorable Conditions"), "Under Other Than Honorable," or "Dishonorable" (warrant officers who do not hold a commission only), depending on the circumstances. The character of service will be predicated on the officer's behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service.
Subparagraph a of paragraph 1-21 continues by listing the Honorable Discharge Certificate (DD Form 256A). Subparagraph b. describes the appropriateness of the DD Form 257A (General Discharge Certificate) and the under honorable conditions characterization of service. Subparagraph c deals with an officer whose service is characterized as having been Under Other Than Honorable Conditions characterization of service.

Subparagraph d. of paragraph 1-121states, "Dishonorable characterization of service. A Dishonorable Discharge is issued only to a warrant officer who is not commissioned as a result of sentence by court-martial. A discharge certificate will not be issued." Subparagraph f provides that "…No formal discharge certificate will be issued when the officer is…(2) Dismissed as a result of sentence of court-martial.…(5) Separated with a Dishonorable discharge (applies only to a warrant officer who does not hold a commission). Subparagraph g provides that, "A DD Form 214 (Certificate of Release or Discharge from Active Duty) will be furnished as prescribed in AR 635-5 to an officer who is separated from AD after completing 90 calendar days of continuous AD."

Army Regulation 635-5 (Separation Documents) sets out the item by item Army instructions for completing the DD Form 214. The instructions for Block 24 Character Of Service states, "Correct entry is vital since it affects a soldiers' eligibility for post-service benefits. Characterization or description of service is determined by directives authorizing separation. For a soldier being released from custody and control of the Army due to a void or voided enlistment, enter hyphens. Otherwise, the entry must be one of the following: (a) HONORABLE.
(b) UNDER HONORABLE CONDITIONS (GENERAL). (c) UNDER OTHER THAN HONORABLE CONDITIONS. (d) BAD CONDUCT.
(e) DISHONORABLE. (f) UNCHARACTERIZED."

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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. The applicant's contentions concerning an omission in the record of trial and the alleged content of that unsubstantiated omission relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process. They furnish no basis for recharacterization of the discharge.

3. As a career officer he had to have known, each time he engaged in his heinous offenses, that he risked losing every benefit of his past service. The Board has considered the quality of the applicant's service and the nature of his contributions during his lengthy record of service. His post-parole behavior and conduct as evidenced by the current expressions of support, has been noted. However, these factors, taken together, fail to outweigh his egregious behavior which led to his trial, conviction and sentencing

4. The Board considers that the applicant's service was truly dishonorable. It also notes that the term dishonorable as used in Army Regulation 600-8-24 applies to a type of discharge. Army Regulation 635-5 governs the completion of the DD Form 214 and provides for characterizations to be either Honorable,
Under Honorable Conditions (General), Under Other Than Honorable Conditions, Bad Conduct, Dishonorable or Uncharacterized. Therefore the Board concludes that the applicant's DD form 214 is correct.

5. His contention concerning the issuing of separate discharge documents is without merit. Whether or not he is entitled to veteran benefits administered by the Department of Veterans Affairs (VA) or any other entity is an issue for the appropriate agency to decide. The VA has the authority and has established procedures to make such determinations.

6. 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 this requirement.

7. 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

__AAO __ __TL ___ ___HBO_ DENY APPLICATION

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

INDEX

CASE ID	AR2003087434
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19900409
DISCHARGE AUTHORITY	AR 635-120, CH 10. . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	105.06
2.
3.
4.
5.
6.