RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            10 March 2005
      DOCKET NUMBER:   AR20040004460


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be reinstated on active duty or retired
with all due back pay, that his discharge be upgraded to fully honorable,
that his reentry (RE) code be changed, and that the narrative reason for
his discharge be changed.

2.  The applicant states, in effect, that his daughter has recanted the
allegations that led to his discharge.

3.  The applicant provides his re-issued DD Form 214 (Certificate of
Discharge or Release from Active Duty) and an affidavit from his daughter.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 June 1979.  He was
promoted to Staff Sergeant, E-6 on 1 March 1992.

2.  On 23 March 1993, the applicant's daughter (born 7 July 1981) reported
to her school officials that the applicant was sexually assaulting her.
The school contacted the Cumberland County Department of Social Services
(CCDSS) and reported the incident.  The Criminal Investigation Command
Report of Investigation (CID ROI) shows that Mrs. C___ Social Worker, CCDSS
interviewed the applicant and his daughter.  (Mrs. C___ apparently had
contacted Mrs. W___, Social Work Services (SWS), who contacted CID.)  The
CID ROI indicated that Mrs. W___ related that the applicant confessed to
Mrs. C___ and admitted to having sexual intercourse with his daughter and
also fondling her.  The CID ROI also noted that Sergeant R___, Social
Worker at Womack Army Medical Center, Fort Bragg, NC had advised the
applicant of his rights, that he waived his rights, and that he admitted to
fondling his daughter.

3.  An unidentified and undated document (but possibly part of an Intake
Data Sheet, Social Work Service, Fort Bragg, NC dated 24 March 1993)
indicated that the applicant admitted that he had been fondling his
daughter on various occasions for the past year.

4.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate) dated
   24 March 1993 is available which shows the applicant waived his rights
and was willing to discuss the offense(s) under investigation and make a
statement without talking to a lawyer first and without having a lawyer
present with him.  A sworn statement is not available; however, apparently
this document is related to the Chronological Record of Medical Care, date
of care 24 March 1993.  Sergeant R___ indicated on this form that on that
date, when asked if the daughter's allegations were true, the applicant
replied "in a way."  The applicant admitted that he had fondled his
daughter on several occasions while his wife was at work and the
molestations had occurred for about one year.

5.  The Chronological Record of Medical Care indicated that, during an
appointment with Social Work Service on 9 April 1993, the applicant
"continued to deny the allegations and could not think of a reason the
child would/might make the allegations."

6.  On 14 April 1993, Detective A___ interviewed, in the presence of
another detective, the applicant's daughter.  The applicant's daughter told
the detective that, in June 1992, the applicant pulled her down on the bed
and pulled her pants down and had sexual intercourse with her.  It happened
again in August and again in October of that year.

7.  A Supplementary Investigation Report from North Carolina Internal
Records indicated the applicant's daughter and wife were interviewed on 14
April 1993.  The applicant's wife stated that she had tricked the applicant
in order to get the truth out of him.  The applicant then admitted to his
wife that he had had intercourse with the daughter.  He told her that he
was asleep and the daughter got into his bed and he thought it was his
wife.

8.  On 7 July 1993, the applicant completed a separation physical and was
found qualified for separation.

9.  On 7 July 1993, the applicant received a mental status evaluation.  He
was found to have the mental capacity to understand and participate in
proceedings and to be mentally responsible.

10.  On 27 July 1993, the applicant's commander initiated separation
proceedings under Army Regulation 635-200, chapter 14-12c for commission of
a serious offense, specifically rape, indecent acts or liberties with a
child, and assault consummated by a battery upon a child under 16 years.

11.  On 5 August 1993, the applicant was advised by consulting counsel of
the basis for the contemplated separation action and its effect and of the
rights available to him.  He requested consideration of his case by an
administrative separation board, requested personal appearance before an
administrative separation board, did not submit statements in his own
behalf, and requested counsel for representation.

12.  The administration separation board proceedings are not available.
However, on 1 November 1993, the Staff Judge Advocate reviewed the report
of the administrative separation board and found it to be legally
sufficient to support the findings and recommendation.

13.  On 1 November 1993, the Commanding General, XVIII Airborne Corps
approved the recommendation to separate the applicant under the provisions
of Army Regulation 635-200, chapter 14-12c for commission of a serious
offense and directed he receive a discharge under other than honorable
conditions.

14.  By memorandum dated 10 December 1993, Major B___, Executive Officer,
informed Lieutenant Colonel H___ (position unknown) that an administrative
board convened on 28 September 1993 to consider whether the applicant
should be discharged for commission of a serious offense.  The
administrative board determined that he (in absentia) was unfit for further
service and recommended a discharge under other than honorable conditions
discharge and the board's recommendation was approved.  The applicant then
voiced his concerns of fairness due to his absence at the board
proceedings.  Major B___ noted, in part, that Captain S___ opined that
administrative board proceedings allow for the respondent's absence; that
he was absent due to his own actions (inability to follow a civilian
judge's order to stay away from his daughter); the hearing was delayed to
allow the applicant to attend but he could not make bail; the applicant was
permitted to talk to the board by phone but he did not address the
allegations, only his concerns about his absence; and the applicant's wife
was introduced and testified that the daughter might be prone to lying.

15.  On 29 December 1993, the applicant was discharged under the provisions
of Army Regulation 635-200, paragraph 14-12c, misconduct - commission of a
serious offense.  He had completed 14 years, 5 months, and 1 day of
creditable active service and had 31 days of lost time (apparently civil
confinement).  He was given an RE code of 3.

16.  On 20 December 1994, in accordance with his plea, the applicant was
found guilty of the civil court offense of indecent liberties with a child
and was sentenced to probation.

17.  On 26 November 2002, the Army Discharge Review Board (ADRB) denied the
applicant's request to upgrade his discharge.

18.  On 18 August 2003, the ADRB, after a personal hearing, voted 4 to 1 to
upgrade the applicant's discharge to general under honorable conditions.
The ADRB found that the applicant's misconduct was partially mitigated by
the length and quality of his service and his post service accomplishments.


19.  On 28 June 2004, the applicant's daughter signed an affidavit
asserting that the applicant did not sexually assault her.  She stated that
she told the Department of Social Services at the time that the statements
were not true, but they did not want to believe her.  They made her so mad
that she ran away several times.  Now that she is older she wants to make
this situation right and to clear her father's records.

20.  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.  Paragraph 14-12c is commission of a
serious offense, military or civil, 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-Action.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.

21.  The Manual for Courts-Martial, United States, 1984 states that the
maximum punishment for conviction under Article 134 (indecent acts or
liberties with a child) is a dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 7 years.

22.  Pertinent Army regulations provide that prior to discharge or release
from active duty individuals will be assigned RE codes based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies and procedures for enlistment and
processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.

23.  RE code 3 applies to persons not qualified for continued Army service,
but the disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  The Board acknowledges that, in 2004, the applicant's daughter recanted
her allegations of sexual assault by the applicant of 10 years earlier.  In
that recantation, she stated that she had told the Department of Social
Services at the time that the statements were not true.

2.  However, the evidence of record shows that the applicant's daughter had
also told Detective A___ that the applicant sexually assaulted her.  It
appears the applicant had told her mother the same thing.

3.  It is also noted that the applicant had been convicted by a civil
court, in accordance with his plea, of indecent liberties with a child.
This offense in itself, even without the greater charge of rape, would have
been sufficient to proceed with separation proceedings under Army
Regulation 635-200, paragraph 12-14c.

4.  Given the reasons cited above, there is insufficient justification to
warrant granting the applicant reinstatement on active duty or a
retirement, upgrading his discharge to fully honorable, changing his RE
code, changing the narrative reason for his separation, or granting him
back pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __le____  __cd____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            __John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004460                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050310                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1993/12/29                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A93.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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